Addresses  and  Articles. 

APRIL-JULY,  1897. 


BY 

Judge  WALTER  CLARK. 


" I  believe  tlie  people  are  as  much  master  now  as  ever." 

James  Hunter,  the  Regulator,  1771,  writing  in  exile 
after  his  defeat  at  the  Alamance. 


RICHMOND  : 

JAMES  E.  GOODE  PRINTING  COMPANY. 

1897. 


Digitized  by  the  Internet  Archive 

in  2011  with  funding  from 

University  of  North  Carolina  at  Chapel  Hil 


http://www.archive.org/details/addressesarticle41clar 

\ 


WHERE   SHALL  THE   GOVERNING   POWER 
RESIDE?" 


Address  Before  the  University  College  of  Medicine, 
Richmond,  Va.,  April  29,  1897. 


Young   Gentlemen  of  the   Graduating  Class,  Mr.  President^ 
Ladies  and  Gentlemen : 

The  poet  Burns  declared  that  in  Hea'ven  itself  he  would 
"ask  no  more  than  just  a  Hieland  welcome,"  and  no  invited 
speaker  can  ever  have  a  handsomer  introduction  or  a  kinder 
welcome  than  he  will  alvtays  receive  at  the  hands  of  a  Vir- 
ginia audience.  The  growth  of  this  magnificent  city  is  a 
pride  to  the  whole  South,  of  which  for  four  long  and  ever- 
memorable  years  it  was  the  capital  and  the  centre.  Of  the 
many  evidences  of  rapid  progress  to  be  seen  on  all  sides,  it  is 
not  ray  purpose  to  speak.  It  is  proper,  however,  to  express 
gratification,  which  should  be  shared  by  every  Southerner, 
that  here  in  our  ancient  capital  this  institution  for  the  edu- 
cation of  physicians  and  surgeons  has  already  taken  so  high 
a  stand,  and  that  there  is  no  need  of  going  farther  North  to 
secure  a  medical  diploma  whose  value  is  recognized  through- 
out the  Union.  When  I  first  saw  the  city  of  Richmond,  it 
was  under  vastly  different  auspices  and  amid  other  surround- 
ing? than  those  that  greet  us  to-night.  It  was  thirty-six 
years  ago.  Virginia  had  called  for  aid,  and  across  her 
Southern  border  North  Carolina  poured  her  troops  like  an 
Alpine  torrent.  At  that  time  I  was  a  lad  of  fourteen,  a  cadet 
at  a  military  institute.     The  troops  needing  such  instruction 


as  it  was  thought  we  could  give,  I  was  like  many  other  as- 
signed to  duty  by  the  Governor,  and  entered  this  State  at- 
tached to  one  of  the  North  Carolina  regiments.  It  was  then 
that  my  feet  first  trod  the  soil  of  this  historic  city.    Remain-  j 

ing  in  the  service,  it  was  my  fortune  again  and  again,  during         j 
these  four  eveiitful  years,  the  memory  of  which  should  never  ' 

be  forgotten,  to  pass  through  Richmond  when  men  from 
Maine  to  Minnesota,  on  the  one  side,  and  men  from  Mar3^1and 
to  the  Mexican  border  on  the  other,  were  contending  for  the 
possession  of  the  Confederate  capital.  Ringed  with  fire,  the 
city  grew  accustomed  to  the  dull,  beavy  booming  of  cauuon,  _---4' 
and  as  at  Saragossa,  people  bought  and  sold,  married  and 
were  given  in  marriage,  danced  or  wept,  as  occasion  served, 
while  the  work  of  war  went  on  at  the  gates. 

To-da}'^  it  is  hard  to  realize  that  the  sceae  is  the  same. 
Lee  and  Jackson  are  glorious  memories  now.  Another  flag 
floats  from  the  flag-staff  en  jour  capitol.     From  yon  river 

"the  fleets  of  iron  have  fled," 

and  where  the  long  lines  of  infantry  stood  the  green  "grave 
grass  grows  where  asleep  are  the  ranks  of  the  dead."  Peace, 
gweet-bosomed  peace,  broods  over  a  city  which  numbers  four- 
fold the  population  of  the  one  that  w^ithstood  McClellan,  and 
Meade,  and  Burnside,  and  Hooker,  and  Grant,  in  the  "brave 
days  of  ola."  Looking  upon  the  surface  of  this  now  peace- 
ful scene  one  would  murmur:    "Other  times;  other  men." 

Yet  I  must  say  to  3'oui,  my  young  friends,  that  not  in  1861, 
when  the  steady  tread  of  the  old  Confederate  regiments  first 
echoed  along  these  streets,  and  the  artillery  wagons  came 
rumbling  by,  and  the  bugles  of  marching  cavalry  rolled  along 
your  valleys,  was  there  greater  unrest  in  the  minds  of  the 
masses  of  your  fellow  citizens  North  and  South,  East  and  West, 
than  there  is  at  this  moment  of  deep,  dreamless,  apparent 
peace.  The  hearts  of  men  are  strangely  moved  within  them, 
for  the  masses  are  not  satisfied  with  existing  conditions.     No 


one  contemplates  that  the  present  unrest  will  culminate,  lilce 
that  of  1 801,  in  armed  strife,  but  all  the  signs  that  history 
has  ever  given  of  great  impending  changes  are  with  us. 
Xone  are  lacking.  Conditions,  will  not,  cannot,  remain  as 
they  are.  Be  assured  of  that.  If  you  are  men  worthy  of 
the  Revolutionary  race  of  heroes  who  won  our  liberties,  and 
equal  to  the  generation  which  faced  the  perils  of  the  great 
civil  v^ar  without  shrinking,  you  should  read  and  understand 
the  signals  of  the  coming  storm. 

There  are  men  to  whom  the  present  status  is  very  com- 
fortable. They  denounce  any  statement  that  all  others  are 
not  as  contented  as  themselves.  It  was  your  own  great 
orator  who,  quoting  the  inspired  seer  of  Israel,  cried  out  in 
prophetic  language:  "They  say  peace,  peace,  but  there  is  no 
peace." 

THE    CONFLICT    OF    IDEA.S, 

the  coriflict  of  interests  is  more  real  at  every  point  of  contact 
than  that  which  Mr.  Seward  proclaimed  an  "irrepressible 
conflict"  in  1-860.  At  Cooper  Institute,  Mr.  Lincoln  truly 
declared  to  a  startled  generation  that  the  Union  could  not 
remain  half  bond  and  half  free.  It  is  equally  true  now  that 
this  Government  cannot  be  governed  partly  by  freemen  and 
partly  by  an  oligarchy  of  wealth.  One  or  the  other  must  be 
sole  master  of  the  Republic.  The  generation  of  1860  had 
not,  like  this,  the  benefit  of  the  lessons  taught  by  four  terrible 
years  of  war,  and  hence  the  issue  of  this  day  can  be  settled 
by  ballots — not  by  bullets. 

But  it  is  well  for  us  to  comprehend  the  intensity  of  the 
question  now  to  be  settled  and  to  understand,  once  for  all, 
that  it  will  not  and  cannot  be  settled  till  there  is  a  complete 
triumph  for  one  side  and  a  crushing,  hopeless  defeat  for  the 
other,  a  catastrophe  so  full  and  utter  that  whatever  way  it 
fall  out,  the  victory  will  be  engraved  in  profound  modifica- 
tions upon  our  organic  law. 


Be  it  understood  that  I  come  not  before  you  to  express  or 
to  advocate  any  views  of  my  own,  or  of  any  party,  or  of  any 
sectioE.  It  would  be  an  insult  to  you  and  unworthy  of  mj'^- 
self  to  use  this  occasion  for  such  a  purpose,  but  I  accept  the 
great  thought  of  Terence,  the  Latin  poet,  which  St.  Augus- 
tine tells  us  was  received  with  thunders  of  applause  by  a 
Koman  audience:  ^^ Homo  sum,  humani  nihil  a  me  alienum, 
jputo.'''  "lam  a  man,  and  whatever  concerns  the  welfare 
of  my  fellowmen  can  never  be  without  interest  to  me.'" 
Called  upon  to  address  educated,  talented  youn^  men  who 
are  to  go  out  and  become  captains  of  thought  and  leaders  in 
the  hosts  of  our  Israel,  I  should  be  unmindful  of  the  duties  and 
opportunities  of  the  occasion  if  I  were  to  waste  it  in  rhetorical 
platitudes  or  well  rounded  sentences  signifying  nothing — the 
situation  is  too  grave, 

THE    ISSUES    TOO    IMPORTANT, 

the  impending  conflict  too  certain,  and  the  results  too  great 
and  lasting.  If  I  can  say  ought  to  ina press  your  ingenuous 
minds  that  a  great  struggle,  more  important  than  that  of 
1861,  and  as  inevitable  (though  we  trust  to  be  settled  in  a 
different  forum),  is  before  you,  and  that  you  will  be  fac- 
tors of  conseqaence  in  that  contest,  then  perhaps  not  alto- 
gether in  vain  I  shall  I  have  stood  before  you.  At  Waterloo, 
when  for  hours  the  conflict  for  the  mastership  of  Europe  had 
hung  in  nearly  even  balances,  and  at  last  as  the  sun  was 
bending  low,  victory  seemed  to  incline  to  the  French,  a  body 
of  troops  was  seen  far  off  towards  the  North  marching  to- 
wards the  field  of  battle.  On  and  o.V  they  caae.  Every 
glass  was  leveled  upon  them.  Leaders  and  gecerals  strained 
their  vision  to  discover  to  which  side  the  reinforcement  be- 
longed, for  it  would  be  cast  into  the  scales,  like  the  sword  of 
Brennus.  If  it  was  the  column"?  of  Grouchy,  then  once 
more,  and  brighter  than  ever  before,  the  star  of  Napoleon 
would   beam    upon   a  field    lost    and    won       If    it    was    the 


leading  files  of  Blucher,  then  the  empire  would  pass  away 
like  a  troubled  dream,  and  England,  England  would  be  the 
cry.  On  they  came,  with  strides  as  steady  as  fate,  as  irre- 
sistible as  destiny.  They  proved  to  be  Bulow's  division  of 
Blucher's  corps,  and  fortune  fled  forever  her  spoiled  and 
favorite  child.  The  present  generation  is  engaged  in  a  like 
momentous  struggle,  not  on  the  narrow  battlefield  of  a  Bel- 
gian plain,  but  on  an  amphitheatre  that  reaches  to  the  silent 
oceans.  In  the  press,  on  the  hustings,  in  close  converse  of 
neighbor  with  neighbor  the  conflict  of  ideas  is  going  on.  It 
is  becoming  more  and  more  intense.  The  forces  are  nearly 
evenly  divided,  and  both  sides,  like  the  the  contending  armies 
at  Waterloo,  are  looking  for  reinforcement  to  the  generation 
that  is  arriving  to  manhood,  for  your  weight  will  decide  the 
issue.  The  arrival  of  your  generation  upon  the  battlefield^ 
will  decisively  end  the  struggle. 

What  are  these  contending  forces,  and  what  is  the  true 
issue?  Is  it  the  tariff?  That  is  a  party  issue  over  which 
either  side  predicts  beneficial  results  of  it  wins,  and  disastrous 
consequences  if  it  fails — and  alternately  one  or  the  other 
wins,  and  with  better  or  worse  conditions  the  country  goes 
on.  Is  it  the  silver  issue,  the  financial  question?  That  is 
nearer  the  mark,  yet  that  question  is  rather  an  incident,  a 
symptom,  a  phase  with  suggested  remedies  and  not  the  dis- 
ease itself.  Nor  yet  is  the  conflict  between  labor  and  capital, 
nor  the  old,  old  struggle  between  State  Eights  and  the  cen- 
tralizing tendencies  of  the  Federal  government. 

THE    VITAL    QUESTION    LIES    DEEPER 

than  any  of  these.  It  is  that  which  the  Roman  republic  had 
to  face,  which  every  republican  government  has  had  to  de- 
termine, and  upon  the  answer  to  which,  its  continued  exist- 
ence as  a  republic  depends.  That  question  was  very  dimly 
and  indistinctly  discerned  in  the  beginning  of  this  great  re- 
public.    It  took  on  increased  importance  after  the  late  civil 


war.  To-day  it  has  become  the  great  underlying  question 
upon  which  men,  instictively,  often  unconsciously,  perhaps, 
are  taking  sides.  It  is  a  question  which  in  a  Republic  must 
be  settled,  and  there  can  be  no  peace  until  it  is,  and  the  re- 
sult must  be  safeguarded  by  profound  constitutional  changes. 
The  vital  question  which  this  country  is  called  upon  to  de- 
termine and  towards  the  determination  of  which  we  are,  in- 
telligently it  may  be,  or  blindly  it  may  be,  groping  our  way 
is  "Where  shall  the  actual  governing  powei  reside."  "Shall 
it  be  in  men  or  money?"  It  is  not  a  new  question,  but  in  a 
Republic  it  is  the  inevitable  question  whose  deterniination 
settles  all  others.  What  matters  it  if  the  Constitution  says 
that  all  political  power  resides  in  or  is  derived  from  the  peo- 
ple if  it  has  ceased  to  be  true  in  fact?  The  Roman  legions 
bore  to  the  latest  days  of  the  empire  upon  their  standards  the 
vvords,  "The  Senate  and  the  Roman  People,"  centuries  after 
Augustus  and  Tiberius  and  Nero  had  stamped  out  the  last 
vestiges  of  the  popular  will.  There  were  still  Tribunes  of 
the  People,  and  the  Consuls  and  a  Senate  and  the  forms  of  a 
Republic  in  official  documents  and  proceedings  long  centuries 
after  the  real  power  had  passed  from  the  curia  and  the  comitia 
to  the  barracks  of  the  Pretorian  Guards,  and  when  there  was 
no  will  in  Rome  save  that  of  their  master. 

YEARS    AFTER    THE    VICTOR    OF    MARENGO 

had  been  crowned  emperor,  and  the  sword  of  Austerlitz  had 
become  the  supreme  power  of  France,  the  French  coins  and 
official  documents  still  bore  the  superscriptions  of  the  repub- 
lic. The  nature  of  a  government  is  not  determined  by  its 
forms  and  titles.  These  usually  remain  unchanged  long  after 
the  governing  power  has  become  vested  elsewhere.  What 
boots  it  if  on  parchment  we  shall  continue  to  read,  "All 
political  power  is  vested  in  and  derived  from  the  people;  all 
government  of  right  originates  from  the  people,  is  founded 


upon,  their  will  only,  and  is  instituted  solely  for  the  good  of 
the  whole,"  if  it  is  not  a  living,  potential,  actual  truth? 

IF,     AS    A    MATTER    OF    FACT, 

great  corporations  through  their  agents,  whether  lobbyists  or 
members  of  the  legislatuie  itself,  can  control  a  majority  of 
that  bod_y,  so  that  the  choice  of  the  corporations,  and  not  the 
genuine  choice  of  the  people,  is  sent  to  the  Federal  Hail  of 
embassadors  to  sit  as  a  Senator  in  Congress,  then  the  parch- 
ment declarations  is  a  flaunting  lie.  If  giganticcombinations 
of  wealth  can  elect  or  control  majorities  in  Static  Legislature 
or  in  Congress,  so  as  to  shape  legislation,  if  they  can  be 
poteixt  in  the  nomination  of  Federal  or  State  officials,  then 
the  veal  governing  pov/er  vests  in  money,  not  in  men,  and 
your  boasted  republic  is  but  a  once  beauteou'j  form  from 
which  the  spirit  has  already  departed. 

This  is  the  question  of  the  hour,  which  should  be  pondered 
and  understood  ?«ith  a  full  grasp  of  its  meaning,  and  all  the 
consequences  vvhich  must  flow  from  the  displacement  of  the 
centre  of  gravity  in  government.  If  this  displacement  has 
already  measurably  taken  place,  or  if  there  is  grave  danger 
of  it,  the  struffo-le  to  restore  it  will  bring  on  the  crisis  which 
must  determine  the  real  nature  of  our  government.  For 
mark  you  well  this  fact:  that  if  multi-millionaires  or  vast 
combinations  of  capital,  have  succeeded,  or  shall  succeed,  to 
the  real  control  of  legislation,  they  have  only  won  its  posses- 
sion because  it  can  be  immensely  profitable  to  them;  and  if 
profitable,  they  cannot  afford  to  run  the  risk,  from  time 
to  time,  of  losing  so  profitable  a  domination  by  popular  agi- 
tation. They  will  seek,  if  they  have  not  already  done  so,  to 
strengthen  themselves  by  securing 

THE    MAJORITY    OF    THE    FEDERAL    SENATE, 

and  an  influence  in  the  executive  councils,  and  even  more 
important  than  that,  the   majority   of  appointments   to   the 


10 

Federal  bench,  whose  life  tenure  and  uncontrolled  power  of 
construing  constitutions  and  statutes  will  be  of  invaluable  aid. 
In  Rome,  where  the  augurs,  by  reading  signs  in  the  sky  or 
inspecting  the  entrails  of  fowls,  could  adjourn  assemblies  of 
the  people  by  decreeing  the  day  to  be  unlucky,  the  augurs 
were  invariably  selected  by  those  in  power,  the  personnel  of 
the  augurs  being  indispensable  for  their  purposes.  Nor,  as 
time  goes  by,  \^ill  the  matter  stop  even  with  the  selection  of 
judicial  augurs.  Agitation,  public  agitation,  effects  values — 
that  horrible  lete  noire  of  capitalism.  Profound  constitutional 
changes,  either  secured  by  express  enactment  or  read  into  the 
Constitution  by  servile  judges,  must  lessen  the  opportunity 
for  agitation  by  rendering  it  povserless,  and  the  gradual  in- 
crease and  the  maintenance  of  a  large  standing  army  must 
prevent  all  thought  of  resistance.  If  the  money  power,  as 
has  been  charged,  and  as  is  believed  by  many,  is  already 
largely  in  the  control  of  the  government,  State  and  national, 
then  the  steps  just  described  will  be  natural  and  necessary  to 
protect  and  preserve  that  profitable  power  in  their  hands, 
leaving  the  empty  forms  of  a  republic  to  stand  in  silent  but 
impotent  protest. 

On  the  other  hand,  if  the  control  of  legislation  is  so  highly 
profitable  and  important  to  the  money  power,  it  will  be  an 
irreparable  calamity  to  the  toiling  masses  to  lose  it.  The 
founders  of  the  republic  fondly  believed  they  had  secured 
it  not  only  for  themselves,  but  for  their  posterity  for  all  time. 
If  the  advocates  of  popular  government  win,  they  in  turn, 
still  less  than  the  money  power,  can  rest  easy  in  the  victory 
with  the  organic  »law  remaining  as  it  is.  Experience  has 
shown  its  weakness  and  its  insufficiency.  There  are  many 
points  requiring  amendments.  It  would  be  tedious,  perhaps 
beyond  my  power,  to  point  out  any  except  the  most  obvious. 
The  election  of  United  States  Senators  by  State  Legislatures 
has  been  so  often  a  perversion  of  the  popular  choice  and  a 
concession  to  corporation  influences  that   the   public   senti- 


11 

ment  to  confer  upon  the  people  of  each  State,  instead  of  its 
Legislature,  the  election  of  its  Federal  Senators  is  confined 
to  no  party  and  to  no  section.  The  bill  to  amend  the  Con- 
stitution in  that  respect  has  passed  the  lower  house  of  Con- 
gress more  than  once,  and  once,  at  least,  by  a  unanimous 
vote.  The  corporations  have  so  far  been  able  to  prevent  its 
passage  by  the  Senate  itself.  The  Federal  judiciary,  by  its 
mode  of  appointment  especially  lays  itself  open  to  the  grasp 
of  great  monopolies  and  combinations,  whose  influence  in 
such  matters  is  asserted  to  have  become  almost  irresistible  of 
recent  years.  The  life  tenure  of  office,  placing  the  occupants 
of  the  Federal  bench  be3''ond  reach  of  public  complaint,  if 
their  trust  is  abused,  and  the  finality  of  their  powers  as  inter- 
preters of  the  Contsitution  and  statutes,  combine  to  make  it 
essential  to  the  great  monopolies  to  control  the  appointment 
in  this  branch  of  the  government.     There  are  unquestionably 

MANY    ABLE    AND    SPOTLESS    MEN 

on  the  Federal  bench  to-day,  but  it  has  been  asserted,  and  it 
must  be  confessed,  not  without  much  foundation  of  fact, 
that  it  is  rapidly  becoming  the  rule  to  fill  such  positions  tvith 
men  whose  life  work  has  been  that  of  counsel  for  great  cor- 
porations and  whose  entire  training  is  calculated  to  bias  them 
upon  all  questions  upon  which  corporation  interests  and  pop- 
ular rights  must  clash.  One  of  the  incidents  of  the  coming 
struc^o-le  will  be  the  determined  effort  to  make  the  Federal 
judges  elective  by  the  people  of  their  respective  districts  and 
circuits  for  a  term  of  j^ears.  This  change  has  alread}'^  been 
deemed  necessary  and  been  decreed  by  nearly  every  State  as 
to  its  own  judiciary,  and  there  are  still  stronger  and  more 
urgent  reasons  why  the  people  should  have  more  weight  and 
the  corporations  less  in  naming  the  Federal  judges. 

Remember  that  it  was  the  sage  of  Mooticello  who  pointed 
out  the  "sapping  and  mining"  which   would  overthrow  the 


12 

Constitution  if  the  ultimate  construction  of  statutes  and  Con- 
stitution was  left  to  so  unrepublican  an  institution  as  a  body 
of  men  who  wp.re  selected  for  life  and  without  the  public  hav- 
ing any  choice  in  their  selection.  Time  has  proven  his  wis- 
dom and  ao-o^ravated  the  evil  he  denounced. 
There  are 

TWO    CLASSES    OF    MEN    ONLY 

ivho  are  likely  to  oppose  the  election  of  United  States  Sena- 
tors and  United  States  Judges  by  the  people:  First,  there  are 
those  who  accept  the  phrase  of  a  govern raent  of  and  by  the 
people  as  a  formula  merely.  They  at  heart  do  not  believe 
the  people  are  capable  of  self-government.  They  would 
never  have  trusted  them  with  the  election  of  Governors, 
members  of  Congress,  or  the  President,  and  the}''  sincerely 
fear  to  trust  to  the  voice  of  the  people  the  selection  of  any 
other  officer  whatsoever.  The  other  class  is  that  whose  self- 
interest,  personal  aspirations  or  orders  from  those  above  them 
bind  to  oppose  popular  enfranchisement  in  the  selection  of 
Federal  Senators  and  Judges. 

Then  there  is  the  great  Transportation  question.  From_ 
its  economic  side  it  is  of  vast  importance.  By  secret  rebates 
they  can  build  up  and  destroy  at  will  cities  and  individual  for- 
tunes. It  is  too  great  a  power  to  t»e  entrusted  to  the  hands 
of  a  few  irresponsible  men,  the  control  of  whom  is  generally 
found  to  be  centered  in  that  modern  Babylon  by  the  Thames. 
Of  vast  importance  from  the  economic  side,  the  danger  is 
deadly  from  the  governmental  standpoint  By  the  vast  num- 
ber of  their  employees,  the  great  numbers  of  the  press  and 
the  bar  whom  they  retain,  and  their  ready  power  of  concen- 
tration of  influences  upon  pivotal  points,  they  have  a  prepon- 
derating weight  which  can  endanger  the  maintenance  of  pop- 
ular government.  The  suggested  remedy  of  government 
ownership  of   railroads  is  untried    here  and  is  fraught  with 


13 

prophesied  evils.  The  remedy  sought  to  be  applied  in  many 
States  of  control  by  means  of  Railroad  Commissions  has  too 
often  resulted  in  the  railroads  electing  the  Coramissiocers  and 
simply  adding  the  Commissions  to  their  ass*3ts.  The  question 
must  needs  be  solved,  but  its  solution  has  not  yet  been  found. 

IT    IS    THB    OLD    RIDDLE    OF    THE    SPHINX. 

To  fail  to  acswer  it  is  death.  There  are  still  other  matters 
which  need  not  be  discussed  now.  Who  shdU  win  the  victory 
remains  to  be  seen.  But  the  inevitable  conflict  is  at  hand  and 
that  its  results  will  be  lasting  and  Mill  leave  its  mark  in  con- 
stitutional changes  is  beyond  question. 

It  should  not  be  lost  sight  of  in  this  struggle  for  the 
possession  of  the  governing  power  there  is  no  taint  of  an 
agrarian  spirit.  There  is  no  appreciable  element  of  the 
American  people  who  are  opposed  to  property  rights.  It  is 
not  opposition  to  property,  but  to  its  combination  in  vast 
masses  for  political  purposes,  that  it  may  control  legislation 
and  the  machinery  of  government  in  the  interest  of  the 
combination  and  against  the  property  rights  of  others.  It 
was  Senator  McDuffie  who  said  that  legislation  could  be  the 
most  powerful  and  exacting  of  plunderers.  There  is  no 
hatred  of  corporations  as  such.  They  are  essential  in  the 
service  of  civilized  life,  nay  indispensable.  Nor  even  against 
railroad  corporations  so  far  as  they  keep  v/ithin  the  legiti- 
mate duties  of  their  creation,  but  is  when  they  seek  to  use 
their  enormous  power  of  wealth  and  organization  for  the  un- 
due emolument  of  their  owners  and  by  entering  the  political 
arena  seek  to  control  legislation  and  public  policy  that  the 
collision  becomes  inevitable.  The  opposition  is  not  to  them 
as  servants  of  the  public,  but  as  would  be  masters  of  the 
people.  That  we  have  already  passed  the  danger  line  as  to 
the  aggregation  of  wealth  will  be  seen  from  this  summary 
from  reliable  sources:  Egypt,  Persia  and  other  great  empires 
fell   when  less  than  ten  per  cent,  of  the  people  had  secured 


14 

nine-tenths  of  the  accumulated  v^ealth  of  those  empires.  The 
glories  of  imperial  Rome  crumbled  into  dust  before  the  brawny 
arms  of  the  half-naked  barbarians  of  the  northern  forests 
when  1,800  families  had  garnered  the  bulk  of  its  wealth. 
Already  to-day,  one-half  of  one  per  cent,  of  the  people  of  this 
country  own  over  one-half  of  its  entire  wealth,  and  nme  per 
cent,  of  its  people  seventy-five  per  cent,  of  its  property.  This 
condition  tends  rapidly  to  aggravate  itself.  To-day  in  Europe, 
forty  per  cent,  of  the  householders  are  tenants.  In  this  grand 
young  Republic  already  seventy  per  cent,  of  the  householders, 
nearly  double  the  European  ratio,  do  not  own  but  rent  their 
hemes.  This  condition  of  things  has  not  accidentally  hap- 
pened. It  has  been  brought  about  by  the  great  corporations 
and  combinations  of  capital.  Already  many  warning  voices 
have  been  raised.  I  will  mention  only  two  —-and  they  are 
leaders  in  the  two  most  conservative  professions  in  the  world. 
In  an  address  before  the  American  Bar  Association  at  Mil- 
waukee in  1893, 

; 
MR.  JUSTICE  BROWN,  OF  THE  SUPREME  COURT  OF  THE  UNITED  STATES, 

the  holder  of  a  post  T^hich  is  a  guarantee  of  his  conservatism, 
and  speaking  to  the  most  conservative  body  in  the  country — 
the  leaders  of  the  bar — pointing  out  the  evils  of  this  rapid 
concentration  of  wealth  into  a  few  hands,  suggested  that 
without  interfering  with  one's  accumulation  in  his  life  time, 
those  vast  estates  whose  continuacce  is  a  menace  to  our  form 
of  government  could  be  effectually  broken  up  by  modifying 
our  statute  of  wills  and  statutes  of  descent  and  providing 
that  at  one's  death  all  above  a  certain  limited  amount  to  each 
child  should  be  otherwise  distributed  or  go  into  the  coffers 
of  the  State.  He  pointed  out  what  every  lawyer  knows, 
though  it  is  contrary  to  our  habits  of  thought,  that  no  man 
after  he  passes  beyond  this  "vale  of  tears"  has  the  right  to 
dictate  what  shall  become  of  his  property.  If  he  could  of 
right  control  it  for  one  generation  he  could   for   many  gene- 


15 

rations,  which  the  law,  years  f»go,  found  it  necessary  to  pro- 
hibit. The  present  condition  of  things  imperatively  demands 
some  limitation  upon  the  transmissal  from  hand  to  hand  of 
these  colossal  estates.  The  public  welfare  is  the  supreme  law. 
The  promotion  of  the  public  welfare  is  named  in  the  pre- 
amble of  the  Constitution  of  the  United  States  as  on3  of  the 
motives  for  that  instrument.  Solus  populi  suprema  Lex. 
The  same  reason  requires  the  breaking  up  of  the  great  estates 
accumulated  by  trusts  and  which  in  turn  create  and  give  a 
motive  for  the  formation  of  trusts.  Without  taking  further 
time,  [  will  quote  a  single  phrase  from  the  words  of  one  who 
is  better  known  to  fame  by  the  designatio  uW  "Ian  McLaren," 
a  conservative  of  a  most  conservative  church,  the  Kirk  of 
Scotland.  In  his  late  work,  "Words  of  the  Mastef,"  he 
says,  "A  millionaire  is  now  almost  worshipped,  but  if  the 
signs  of  the  time  are  not  at  fault,  the  day  is  not  far  distant 
when  to  die  possessed  of  great  wealth  will  be  to  stamp  one  as 
a  semi- criminal.'"  These  quotations  might  be  greatly  ex- 
tended, but  when  we  reflect  that  these  utterances  are  from 
leaders  of  thought  in  the  two  most  conservative  professions 
in  the  world — for  your  own  great  profession  has  now  become 
one  of  the  most  progressive  on  the  planet,  a  very  Edison 
among  the  professions — when  such  speech  comes  from  such 
men  we  know  that  we  are  face  to  face  with  the  great  evil  of 
the  day,  and  that  the  public  welfare  demands  its  abatement. 
I  will  add  just  here  one  other  quotation.  In  his  message  to 
Congress,  Deceirber  3,  1888,  President  Cleveland  used  these 
striking  words:  "The  communism  of  combined  wealth  and 
capital,  the  outgrowth  of  over-weening  cupidity  and  seldsh- 
ness,  which  insidiously  undermines  the  justice  and  integrity  of 
frie  institutions,  is  not  less  dangerous  than  the  communism  of 
oppressed  poverty  and  toil,  which  exasperated  by  injustice 
and  discontent,  attacks  with  wild  disorder  the  citadel  of  rule.'"* 
He  might  have  said  that-  w^s  a  thousand  fold  more  so. 


16 


THE    REAL    MENAGE    TO    MEN    OF    MODERN    PROPERTY 

and  those  seeking  to  earn  a  modest  competence  is  not  in  the 
poor  and  weak,  but  in  the  collossal  and  mighty  combinations 
"which  lay  their  hands  upon  States  and  recoil  not  on  the 
threshold  of  the  National  Judiciary.  ""Words,"  said  Mira- 
beau,  "Words  are  things."  Aware  of  that  fact,  those  who 
serve  the  money  power  by  speech  and  pen,  are  wont  to  dub 
those  who  entertain  sentiments  adverse  to  government 
by  money  as  anarchists,  socialists  and  communists.  But  be 
not  daunted  in  this  contest  by  epithets.  The  very  combina- 
tion of  epithets  will  show  that  they  are  words,  nothing  more. 
An  anarchist  is  one  who  is  opposed  to  all  government.  He 
is  the  ne  plus  ultra  of  individualism.  Society  has  nothing 
to  fear  from  the  few  hundred  throughout  the  Union  profess- 
ing that  faith.  At  the  very  opposite  pole  are  the  commun- 
ists who  believe  in  government  for  everything,  in  the  com- 
munity of  goods.  This  system  failed  under  the  Apostles 
themselves  who  gave  it  a  trial,  and  is  not  likely  to  be  tried 
again  with  any  success  while  poor  human  nature  remains 
what  is.  Between  these  two  opposite  poles,  anarchism  or 
no  government,  on  the  one  hand,  and  communism  or  govern- 
ment in  everything  at  the  other,  lies  socialism.  Every  civil- 
ized government  is  to  a  large  extent,  and  almost  in  propor- 
tion to  its  degree  of  civilization,  socialistic.  The  original 
conception  of  government  was  a  policeman  with  a  big  stick 
to  prevent  or  punish  murder  and  violence,  theft  and  other 
crimes,  so  that  property  and  person  might  be  secure.  But 
tie  have  become  far  more  socialistic  than  that  crude  begin- 
ning. When  taxes  were  laid  on  the  property  and  persons  of 
all,  whether  having  children  or  not,  and  not  in  proportion  to 
the  number  of  children,  in  order  to  educate  other  people's 
children,  a  most  unmistakable  stride  towards  socialism  was 
taken,  yet  our  public  schools  are  now  our  pride,  and  justly 
so.     Socialistic,  too,  is  the  levy  of  public  taxes  to  maintain 


17 

hospitals  for  the  sick,  the  poor,  the  insane,  the  blind  and  the 
deaf  and  dumb.  So  is  the  postoffice  itself,  for  what  connec- 
tion is  there  between  governraenl  in  its  original  function  of 
preserving  peace  and  order  and  the  distribution  of  intelligence? 
In  like  manner  municipal  ownership  of  lights,  water  works 
and  street  cars — adnirable  as  it  is,  and  admirably  as  it  has 
operated  for  the  public  good — is  essentially  socialistic.  I 
would  not  be  misunderstood  as  opposing  any  of  these  measures 
because  they  are  socialistic,  nor  as  advocating  further  steps  in 
that  direction.  That  is  not  my  purpose,  but  to  call  to  your 
minds  that  whether  a  measure  is  to  be  adopted  or  not,  should 
depend  upon  whether  it  will  serve  the  public  welfare,  and 
that  it  is  not  to  be  rejected  if  the  only  objection  that  can  be 
urged  is  that  some  one  thinks  it  is  socialistic,  seeing  that  so 
large  a  part  of  the  better  portion  of  government  is  already 
of  like  nature.  We  need  to  be  often  reminded,  indeed  we 
should  never  forget,  that  government  exists  for  the  people 
and  not  the  people  tor  the  government.  It  was  your  own 
great  statesman,  Thomas  Jefferson,  who,  for  maintaining  this 
sentiment  in  the  opering  of  the  century,  brought  doMn  uppn 
his  head  the  wrath  of  those  who  believed  in  government  ky 
the  few. 

THE   BREEZES   THAT   SWEEP   FROM   THE   SOUTH 

across  the  dark  and  bloody  trocha,  from  the  orange  groves  of 
the  Queen  of  the  Antilles,  bear  to  us  the  despairing  cry  of 
Cuba  Libra  fram  men  whose  souls  are  stirred  by  the  same 
sacred  fires  that  burned  in  the  bosom  of  the  heroes  of  1776, 
and  already  Maceo  has  fallen,  the  "Warren  of  this  new  strug- 
gle for  liberty.  And  from  across  the  deep  waters,  borne  by 
the  harnessed  lightning  from  Epirote  valleys  and  Thessalian 
plain  comes  the  clash  of  arms  where  the  descendants  of 
Epaminondas  and  Miltiadesare  struggling  in  the  lists  with 
the  myriads  of  the  modern  Xerxes.  Our  hearts  go  out  to 
Cuban  and  to  Cretan,  to  Epirotes  and  the  men  of  Macedonia, 
2 


18 

our  hands  might  go  too,  if  our  goveraraent  really  express^^d 
the  feelings  of  the  people.  But  are  we  sure  that  John  Ran- 
dolph, of  Roanoke,  was  not  right  when  he  said:  "Sirs,  the 
Greeks  are  at  our  doors.""  In  seeking  the  salvation  of  others, 
are  we  sure  of  our  own?  While  sympathizing  with  the  strug- 
gle for  self-government  elsewhere,  are  we  certain  that  we 
have  it  ourselves?  Is  there  no  whisper  of  the  lobby  that  at 
times  is  more  potent  than  the  voice  of  the  people?  Is  there 
never  behind  the  Executive  a  power  greater  than  the  Execu- 
tive itself? 

When  Napoleon  Bonaparte  was  an  unknown  lieutenant  of 
artillery,  some  one  asked  Abbe  Raynal  why  he  spent  so  much 
time  talking  with  him.  "Because,"  said  the  Abbe,  'there  is 
so  much  future  in  him.'  "  It  is  always  pleasant  to  talk  to 
young  men,  there  is  so  much  future  in  them,  but  my  young 
friends,  I  will  claim  your  attention  no  longer.  I  might  have 
spoken  to  you  upon  matters  connected  with  your  own  great 
profession  and  the  w^onderful,  almost  miraculous,  advances 
it  has  made  in  recent  years,  but  in  doing  so  I  should  have 
deserved  the  fate  of  him 

WHO    CARRIED    COALS    TO    NEW    CASTLE. 

I  might  have  spoken  to  you  of  my  own  profession;  this  would 
have  been  pleasant  to  me,  but  would  have  been  dull  to  you. 
I  might  have  interested  you  by  praises  of  the  beauty  and 
perfections  of  the  lovely  sex  which  honors  us  with  its  pres- 
ence to-night,  but  to  do  so  would  have  been  a  vain  attempt 
to  "paint  the  lily  or  gild  refined  gold."  I  might  have  re- 
ferred to  the  glorious  past  of  this  grand  old  Commonwealth, 
the  mother  of  statesmen  and  of  States,  but  the  eager  youth 
of  to-day  think  not  of  the  past.  They  have  their  faces 
turned  towards  the  glorious  morn  whose  opening  gates  give 
glimpses  of  the  golden  corruscations  of  the  dawn.  The  future 
is  theirs,  all  theirs,  and  it  will  be  what  they  shall  make  it. 
I  have  therefore  met  you  on  the  platform  where  all  citizens 


19 

of  the  Republic  stand  together,  in  which  all  have  an  equal  in- 
terest. I  have  told  you  of  the  great  and  just  unrest  in  the 
public  mind  and  the  dissatisfaction  at  present  conditions.  I 
have  called  your  attention  to  the  fact  that  the  vital  and  inevi- 
table issue  overshadowing  all  others  is  whether  the  governing 
power  shall  reside  in  manhood  or  in  money.  I  have  endeavored 
to  call  your  attention  briefly  to  the  consequences  of  victory 
for  either  side  and  to  some  of  the  remedies  suggested.  I  now 
again  repeat  that  the  disposal  of  the  victory  is  with  3'^our  gene- 
ration, for  you  shall  bear  in  your  hands  the  issues  of  life  and 
death  for  the  last  great  experiment  of  free  goyernment.  With 
you  it  shall  rest  whether  the  silent  centuries  are  all  ready  to 
close  over  the  tomb  in  which  shall  rest  the  last  hope  of  hu- 
manity. 

On  your  Capitol  grounds  stands  the  colossal  statue  of  the 
world's  greatest  leader,  who  vvon  the  battle  for  the  fiee.  On 
eternal  guard  around  him  stand  the  bronzed  figures  of  those 
who  preserved  that  liberty  in  civic  halls  and  high  debate  for 
many  a  weary  year.  Out  yonder  overlooking  ''Fame's  eter- 
nal camping- ground" — in  Hollywood  cemetery — and  the 
dreamless  sleep  of  many  a  chieftain  and  many  a  soldier,  is  the 
peerless  form  of  another  of  the  world's  greatest  leaders,  he 
who  said  that  ''Duty  is  the  noblest  word  in  the  English  lan- 
guage." Where  these  immortals  have  led  the  vi  ay,  we,  the 
children  of  men,  can  afford  to  follow. 


'*  THE   RIGHT   TO    REGULATE  RAILROAD  FARES 
AND  FREIGHT   RATES." 


Address  Before  the  Law  Class  of  Wake  Forest  College, 
May  24,    1897. 


Young   Gentlemen  of  the  Law  Department,  Mr.   President, 

Ladies  and  Gentlemen : 

The  rapid  progress  and  development  of  Wake  Forest  Col- 
lege in  recent  years  is  a  subject  of  congratulation,  not  only  to 
the  great  denomination  to  whose  energy,  wisdow  and  liber- 
ality it  owes  its  existence,  but  to  the  whole  State.  It  is  doing 
a  grand  and  beneficent  work  and  is  sowing  seed  which  shall 
bear  abundant  harvests.  Dr.  Hufraan  in  his  late  admirable 
paper  OD  "The  Baptists  in  ISTorth  Carolina,"  in  speaking  oi  the 
early  persecutions  they  underwent  in  this  colony  and  the  con- 
temporaneous contests  between  the  people  and  arbitrary  rul- 
ers, says,  with  truth  and  force:  ''In  all  this  long  struggle  the 
Baptists  were  of  the  people  and  with  the  people.  They  be- 
lieved in  civil  and  political  as  well  as  religious  liberty,  and 
held  themselves  in  readiness  to  contend  earnestly,  not  only 
for  the  faith  once  delivered  to  the  saints,  but  also  for  the 
chartered  rights  of  freemen.  To  understand  their  rapid 
growth  in  numbers  and  influence,  it  is  necessary  to  bear  these 
facts  in  mind." 

There  has  ever  been  this  compensation  for  religious  prose- 
cution —that  it  burns  into  the  inmost  souls  of  its  victims  the 
necessity  of  civil  liberty  and  creates  a  sturdy  determination  to 
maintain  it  always  and  under  all  circumstances — and  to-day 


21 

the  unbending  spirit  of  freemen  and  devotion  to  the  right  of 
the  people  to  self-government  have  no  firmer  anchorage  than 
in  the  hearts  of  the  Baptist  people  of  North  Carolina. 


SUCCESSFUL    AS    THIS  COLLEGE  HAS  BEEN 


the  suscess  of  its  Law  Department  has  been  phenommal.  It 
began  with  tw^o  students  in  the  summer  of  1894,  not  quite 
three  years  ago.  I  learn  from  Prof.  Gulley  that  in  the  ses- 
sion of  1894-5  it  had  fourteen  students;  the  catalogue  of 
1895-6  shows  sixty-seven  law  students,  and  that  of  1896-7 
has  eighty-sil — a  number  which  is  not  only  greater  than 
that  of  any  other  law  school  in  the  State,  but  which,  I  am 
told,  is  greater  than  that  of  all  the  other  law  schools  put  to- 
gether. Twenty-eight  of  its  students  have  already  received 
license  to  practice  and  are  scattered  over  this  State,  Georgia, 
South  (Carolina  and  Virginia,  and  twenty -five  more  will  apply 
for  license  at  the  September  term  of  the  Supreme  Court.  I 
learn,  too,  that  your  law  course  requires  two  years.  This 
is  eminently  right.  Young  men  lose  nothing  by  taking  time 
to  lay  broad  and  deep  the  foundations  of  their  legal  knowl- 
edge. There  is  nowadays  too  great  a  disposition  to  rush  out 
into  all  the  professions  with  too  little  preparation. 

Tn  nothing  is  the  old  maxim,  Festina  lente  (''make  haste 
slowly"),  wiser  than  in  this  matter  of  procuring  a  thorough 
training  for  the  arena  on  which  one  is  to  fight  the  battle  of 
life.  In  many  of  the  States  three  years'  legal  study  is  re- 
quired before  admittance  to  the  bar,  and  in  others  four  years. 
There  are  several  which  require  only  two  years'  study. 
North  Carolina  is  one  of  the  very  few  States  in  which  only 
one  year's  study  is  required  before  the  law  student  is  per- 
mitted to  stand  his  examination  for  license  to  practice.  This 
is  entirely  too  little.  It  is  unjust  to  the  bar,  and  more  than 
unjust  to  the  young  student  who  should  begin  his  career  well 
grounded  in  the  principles  of  law.  Your  college  officials 
have  done  well  by  you  and  acted  vsisely  for  the  reputation 


22 

of  the  college  in  exacting  a  two  years'  course  of  study,  for 
your  success  or  failure  in  after  life  will  reflect  upon  the  col- 
lege which  sends  you  forth. 

So  large  and  prosperous  a  law  school  and  college  must,  frora 
time  to  time,  turn  out  men  who  will  be  influential  for  weal 
or  woe,  in  guiding  the  destinies  of  the  State.  In  the  begin- 
ning of  the  great  Freoch  Revolution,  w^hen  the  young  soldiers 
flocked  from  all  parts  of  France  to  the  standards  of  the  Re- 
public, 

THE  GENERALS  WOULD  SAY: 

"There  are  some  captains  among  you;  a  little  time  will  show 
who  they  are,  and  they  shall  have  their  places."  I  know 
not  how  many  governors  and  generals  and  senators  and  judges 
I  am  talking  to  to-night — and,  possibly,  there  may  be  a  bishop 
or  two  among  you,  for  I  see  some  good  Methodist  timber  here 
— and  1  feel  the  responsibility  of  selecting  a  subject  upon 
which  to  address  you. 

Speaking  to  young  lawyers,  the  address  should  properly  be 
upon  some  legal  subject,  yet" it  might  not  be  easy  to  find  one 
upon  which  you  are  not  already  well  posted  by  your  excellent 
instrdctor.  It  occurs  to  mo,  however,  that  there  is  one  upon 
which  many  practicing  lawyers  even  are  not  as  well  informed 
as  they  should  be,  because  its  vast  importance  is  of  compara- 
tively recent  development,  and  cases  involving  it  have  been 
rarely  tried  as  yet  at  the  bar  of  the  courts  of  this  State — 
though  the  subject  is  on  trial  at  the  great  bar  of  public  opin- 
ion. It  is  a  matter,  too,  upon  which  every  citizen,  be  he  law- 
yer or  layman,  should  be  thoroughly  informed  as  to  his  rights 
and  the  rights  of  the  public, 

I  shall,  therefore,  speak  to  you  to-night  upon  "The  Right 
of  the  Public  to  regulate  the  changes  ol  Common  Carriers  and 
of  all  others  discharging  Public,  or  quasi- Public,  Duties." 
The  decisions  on  the  subject  by 


23 


THE  SUPREME  COURT  OF  THE  UNION 

have  been  quite  uniform,  and  have  so  thoroughly  illuminated 
and  settled  the  \i  hole  matter  that  I  can  discuss  it  with  small 
reference  to  the  decisions  of  other  tribunals.  I  must  express 
my  apologies  to  the  best  and  fairest  part  of  humanity  who 
have  honored  us  with  their  presence  to  night  that  I  have  been 
assigned  so  dry  a  subject  as  a  law  lecture,  but  I  will  make 
them  the  best  amends  in  my  power  by  detaining  them  as  short 
a  time  as  possible  from  hearing  addresses  from  other  lips  and 
on  a  far  more  interesting  subject,  a  subject  that  (hough  old  is 
ever  new,  and  which  requires  no  flowers  of  rhetoric  to  catch 
the  attention  of  those  who  "blush  at  the  praise  of  their  own 
loveliness." 

The  right  of  the  public  to  regulate  the  charges  of  common 
carriers,  even  in  times  when  the  public  granted  no  franchise, 
and  conferred  no  right  of  eminent  domain,  is  far  older  than 
the  common  law,  older  even  than  the  civil  law,  and  was  re- 
cognized by  both  as  a  necessary  and  unquestioned  rule 

TWENTY-ONE  YEARS  AGO,   IN    1876, 

the  Supreme  Court  of  the  United  States  was  first  called  upon 
pointedly,  to  review  and  re-affirm  the  recognized  law  of  the 
ages,  that  the  sovereign  possessed  the  right  to  regulate  the 
charges  for  services  rendered  in  a  public  employment,  or  for 
the  use  of  property  affected  with  a  public  interest.  The 
particular  instance  was  the  constitutionality  of  an  act  of  the 
General  Assembly  of  Illinois  regulating  the  charges  of  ware- 
houses for  the  storage  of  grain.  It  was  contended  thai,  un- 
like railroads  and  telegraph  companies,  the  public  had  con- 
ferred no  franchise  by  au  act  of  incorporation,  nor  used  the 
right  of  emineni  domain  to  take  private  property  for  their 
use,  and  henc8  that  tho  right  to  regulate  warehouse  rates 
was  not  to  be  placed  on  the  same  footing  as  the  unquestioned 


24 

public  right  to  regulate  the  charges  of  common  carriers.  The 
underlying  principle,  however,  was  held  to  be  broad  enough 
to  embrace  the  public  right  tc  fix  and  control  the  charges  of 
grain  warehouses.  Though  the  pressure  of  immense  interests 
was  brought  to  bear  to  swerve  the  court  from  the  well -beaten 
track  by  the  aid  of  the  ablest  and  most  skilful  members  of  the 
bar,  it  firmly  held  to  the  principles  which  have  always  been 
law  among  Anglo-Saxon  people.  The  court  laid  down  the 
following  principle  to  which,  with  one  slight  deviation,  it  has 
ever  since  adhered : 

"1.  Under  the  powers  inherent  in  every  sovereignty,  a 
government  may  regulate  the  conduct  of  its  citizens  towards 
each  other,  and  when  necessary  for  the  public  good,  the  man- 
ner in  which  each  shall  use  his  own  property. 

"2.  It  has,  in  the  exercise  of  these  powers,  been  customary 
in  England  from  time  immemorial,  and  in  this  country  from 
the  first  colonization,  to  regulate  ferries,  commoD  carriers, 
hackmen,  bakers,  millers,  wharfingers,  auctioneers,  inn-keep- 
ers and  many  other  matters  of  like  nature,  and  in  so  doing  to 
fix  a  maximum  charge  to  be  made  for  services  rendered,  ac- 
commodations furnished  and  articles  sold. 

"3.  The  Fourteenth  Amendment  to  the  United  States  Con- 
stitution does  not  in  any  wise  amend  the  law  in  this  particu- 
lar. 

"4.  When  the  owner  of  property  devotes  it  to  a  use  in 
which  the  public  has  an  interest,  he,  in  effect,  grants  to  the 
public  an  interest  in  such  use,  and  must,  to  the  extent  of  that 
interest,  submit  to  be  controlled  by  the  public. 

"5.  The  limitation  by  legislative  enactment  of  the  rate  of 
charges  for  services  rendered  in  an  employment  of  a  public 
nature,  or  for  the  use  of  property  in  which  the  public  has  an 
interest  establishes  no  new  principle  in  the  law,  but  only  gives 
a  new  effect  to  the  old  one." 

The  opinion  was  rendered  by 


25 


CHIEF  JUSTICE  'V^  AITE, 


and  is  a  very  able  and  elaborate  one.  Only  two  Judges  out 
of  the  nine  upon  that  court  (United  States  Supreme  Court) 
dissented  from  any  part  of  the  opinion.  It  is  doubtful  if  a 
more  important  one  has  been  delivered  by  that  court  in  re- 
cent years  than  this  negative  which  it  then  and  there  put  upon 
this  attempt,  by  one  of  the  great  monied  combinations  of 
the  country,  to  reverse  the  immemorial  law  that  the  public 
has  the  right  to  regulate  the  charges  in  all  matters  affected 
with  a  public  use.  The  court  pointed  out  that  the  very  learned 
and  just  Lord  Chief  Justice  Sir  Matthew  Hale,  centuries  ago, 
had  laid  it  doM  n  in  his  Treatise  De  Jure  Maris^  that  the 
sovereign  could  regulate  the  conduct  and  tolls  of  public  fer- 
ries, and  in  his  Treatise  De  Portihus  Ma7'is  had  laid  duwn 
the  same  as  the  rule  of  the  common  law  as  to  wharves  and 
wharfingers,  and  as  to  all  property  and  avocations  "affected 
by  a  public  interest,"  and  cited  many  English  and  American 
decisions,  recognizing  this  to  be  a  true  statement  of  the 
well-settled  "law  of  the  land."  The  court  in  that  case 
well  says  that  in  all  such  matters,  "The  controlling  fact 
is  the  power  to  regulate  at  all.  If  that  exists,  the  right  to 
establish  a  maximum  of  charge,  as  one  of  the  means  of  regu- 
lation, is  implied.  In  fact  the  common  law  rule,  which  re- 
quires the  charge  to  be  reasonable,  is  itself  a  regulation  as  to 
price.  Without  it  the  owner  could  make  his  rates  at  will, 
and  compel  the  public  to  yield  to  his  terms,  or  forego  the 
use.  *  ^  *  To  limit  the  rate  of  charges  for  services 
rendered  in  a  public  employment  or  for  the  use  of  property 
in  wh'ch  the  public  has  an  interest,  is  only  changing  a  regu- 
lation which  existed  before,"  and,  therefore,  the  court  de- 
clared that  it  is  not  "a  taking  of  property  without  due  pro- 
cess of  law."  The  court  further  said,  "We  know  that  this 
is  a  power  which  may  be  abused,  but  that  is  no  argument 
against  its  existence.     For  protection  against  abuses  by  legis- 


26 

latures,  the  people  must  resort  to  the  polls,  not  to  the  courts." 
This  is  a 

VERY  PLAIN  AND    STRAIGHTFORWARD    DECLARATION 

of  the  immeinorial  law,  and  if  tbat  court,  under  tremendous 
pressure,  has  since  intimated  that  the  courts  might  supervise 
legislative  action  if  the  rates  should  ever  be  such  as  to  de- 
stroy the  value  of  prop'^rty,  it  has  never  infringed  upon  its 
declaratioii  that  the  people,  through  its  representatives  in  the 
law-making  body,  could  prescribe  rates,  and  the  court,  in  fact, 
has  never  venturea  to  set  aside  the  legislativ-^e  rates  in  a  single 
case  pver  brought  before  it  as  unreasonable,  nor  has  it  fixed 
the  piecise  line  at  \^hich  it  would  assume  to  intervene. 

By  all  the  decisions  the  right  to  fix  rates  being  cot  a  judi- 
cial but  a  legislative  power,  to  be  exercised  by  the  legislature 
iiself  or  through  a  commission  created  by  it,  it  logically  fol- 
lows as  the  court  said  in  this  case,  aud  reaffirmed  in  Budd  vs. 
New  York,  143  U.  S.,  516,  the  remedy  for  a  harsh  exercise 
of  the  power  (if  it  should  ever  happen)  is  a  recourse  to  the 
people  at  the  ballot-box,  not  to  the  courts.  For  an  unwise  or 
oppressive  use  of  its  powers,  the  Legislature  is  not  subject  to 
the  supervision  of  the  judiciary,  which  is  merely  a  co-ordinate 
branch  of  the  government.  It  is  only  when  the  Legislature 
passes  an  act — whether  wisely  or  unwisely  —which  is  not 
within  the  scope  of  its  powers,  that  the  courts  can  declare  it 
unconstitutional. 

In  this  same  case  (Munn  vs.  Illinois)  the  court  further  holds 
that  the  provision  of  the  Fourteenth  Amendment,  that  no 
State  shall  "deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws,"  has  no  application,  for  "cer- 
tainly," it  says,  "it  cannot  be  claimed  that  this  prevents  the 
State  from  regulating  the  fares  of  hackuien  or  the  charges  of 
draymen  in  Chicago,  unless  it  does  the  same  thing  in  every 
other  place  in  its  jurisdiction."  This  rule  has  since  been  re- 
iterated in  Dow  vs.  Beidelman,  125  U.  S.,  680. 


27 
Some  time  has  been  given  to  the  consideratioa  of 

MUKN   vs.    ILLINOIS, 

as  it  is  the  leading  one,  in  wbich  tbe  force  of  great  combina- 
tions of  capital  was  brought  to  bear  to  remove  tbe  ancient 
landmarks  which  protected  the  people  from  excessive  and  un- 
reasonable charges,  No  case  has  been  more  often  cited  since 
and  approved.  If  at  common  law  the  public  had  a  right  to 
regulate  the  charges  of  stage  lines,  grist  mills,  bakers,  chim- 
ney sweeps,  inn- keepers  and  the  like,  as  to  whom  the  public 
conferred  no  franchises,  for  an  overwhelming  reason  it  must 
possess  that  right  as  to  the  modem  carriers  by  rail,  whose 
companies  receive  their  eKistence  from  the  public  « ill  and 
have  the  breath  of  life  breathed  into  them  by  legislative  act. 
Beyond  that,  railroad  corporations  are  vested  with  the  power 
of  eminent  domain,  since  power  is  given  to  them  to  take  pos- 
sesion of  the  lands  of  others,  against  their  will,  in  order  to 
build  their  tracks.  This  could  only  be  done  if  these  corpora- 
tions are  created  for  the  public  benefit,  since  the  Constitution 
forbids  private  propertv  to  be  taken  "except  foi  public  uses." 
In  the  very  next  case  to  Munn  vs.  Illinois,  the  Supreme 
Court  of  the  United  States  held  (Chicago  R.  R.  vs.  Iowa,  94 
U.  S. ,  155)  that  railroads  being  common  carriers  for  hire 
are  "subject  to  legislative  control  as  to  their  rates  of  fare 
and  freight"  and  that  the  State  not  having  exercised  the 
right  for  a  long  series  of  years  made  no  difference,  for  a  gov- 
ernment could  Jose  none  of  its  powers  by  non  user;  and  fur- 
ther that  it  did  not  "affect  the  case  that  before  the  Legisla- 
ture had  fixed  the  maximum  rate  the  company  had  pledged 
its  income  as  security  for  debt  and  had  leased  its  road  to  a 
tenant  who  paid  a  higher  rent  because  the  rates  had  not  be-en 
reduced  by  legislative  enactment,  since  the  company  held  its 
franchise 


28 


SUBJECT  TO  THE  LEGISLATIVE  POWER 

to  regulate  rates,  and  could  not  convey  either  to  its  mortga- 
gee or  its  lessee  greater  rights  than  it  had  itself."  The 
opinion  in  this  case  also  was  written  by  the  Chief  Justice. 
The  same  decision  (cited  and  approved  in  Kuggles  vs.  R.  Co., 
108  U.  S.,  526,  and  R.  Co.  vs.  Illinois,  108  U.  S.,  541,  and 
in  other  cases)  sustained  the  power  of  the  Legislature  to  clas- 
sify railroads  according  to  the  amount  of  business  done,  and 
to  prescribe  "a  maximum  of  rates  for  each  of  the  classes," 
the  court  saying  that  a  uniform  rate  for  all  railroads  in  the 
State  might  possibly  operate  unjustly,  and  that  at  any  rate 
it  was  in  the  discretion  of  the  General  Assembly  to  classify 
the  roads  and  fix  different  rates.  In  fact  in  the  latest  case, 
Covington  vs  Sanford,  164  U.  S.,  578,  it  was  held  that  it 
was  in  the  legislative  power  to  prescribe  a  different  rate  for 
each  road. 

In  Peik  vs.  Chicago,  94  U.  S.,  164,  the  court  held,  the 
Chief  Justice  again  delivering  the  opinion,  that  where  a  rail- 
road was  chartered  by  two  or  more  States,  each  State  had, 
nevertheless,  the  right  to  fix  the  rates  between  any  two  points 
in  its  own  territory,  and  further  said,  quoting  Munn  vs.  Illi- 
nois, that  the  Legislature  and  not  the  courts,  must  say  what 
are  reasonable  rates,  for  the  legislative  rate  "binds  the  courts 
as  well  as  the  people.  If  it  has  been  improperly  fixed,  the 
Legislature,  not  the  courts,  must  be  appealed  to  for  the 
change."  And  on  the  next  page,  Chicago  vs.  Ackeriy,  94 
U.  S.,  179,  the  court  again  held  that  the  maximum  fixed  by 
the  Legislature  is  binding,  and  the  railroad  company  will  not 
be  permitted  to  collect  more  by  showing  in  the  courts  that 
the  prescribed  rate  is  unreasonably  low.  This  has  since  been 
reaffirmed  in  Budd  vs.  New  York,  14c)  U.  S.,  516,  at  pp.  547. 

This  question,  however,  cannot  arise  as  to  rates  which  shall 
be  fixed  by  the  railroad  commission  of  this  State,  since 


29 


THE   LEGISLATUEE  IN  ITS  LIBERALITY 

expressly  provides  in  the  act  of  1891,  creating  the  Railroad 
Commission,  that  if  any  common  carrier  shall  deem  the  rates 
prescribed  too  low,  the  company  may  appeal  to  the  Superior 
Court.  In  that  court  a  jury  of  twelve  men  can  pass  upon  and 
settle  the  fact  in  dispute  whether  the  rate  is  reasonable  or  not. 
Nothing  can  be  fairer  than  to  submit  the  question  to  the  same 
tribunal  which  settles  all  disputed  issues  of  fact  when  the 
lives,  liberty,  rights  and  property  of  any  citizen  are  at  stake. 

The  right  of  the  public  to  regulate  rates  is  not  restricted  to 
those  avocations  which  are  essendally  monopolies,  as  railroads 
and  the  like,  but  it  applies  to  all  matters  which  are  afifected 
with  a  public  use.  This  was  carefully  considered  by  the 
Court  uf  Appeals  of  New  York  in  People  vs.  Budd,  117  ]\". 
Y.,  1,  in  which  it  was  declared  that  the  right  of  regulation 
by  the  public  is  not  restricted  to  cases  in  which  the  owner 
has  a  legal  monopoly  or  some  special  government  privilege  or 
protection^  but  extends  to  all  public  employments  and  prop- 
erty. In  that  case  a  statute  fixing  a  minimum  charge  for 
grain  elevators  was  sustained.  This  decision  upon  a  writ  of 
error  was  alfirmed  by  the  Supreme  Court  of  U.  S.,  Budd  vs. 
'N.  Y.,  1-13  U.  S.,  517,  and  to  the  same  effect  is  Brass  V5. 
North  Dakota,  153  U.  S.,  391. 

The  right  of  regulation  applies  also  to  water  comj)anies, 
Spring  Valley  vs.  Schottler,  110  U.  S.',  347,  and  in  a  recent 
Texas  case,  the  right  to  regulate  the  charges  of  cotton  com- 
presses is  recognized,  and  there  aie  also  cases  recognizing  the 
rioht  to  regulate  charges  of  tobhacco  warehouses  and  of  Avare- 
houses  for  storing  and  weighing  cotton,  and  to  regulate  ser- 
vices and  charges  of  general  warehousemen.  Delaware  vs. 
Stock  Yard,   45  N.  J.  Eq.,   50. 

The  same  right  of  public  i  egulation  of  rates  applies  to  street 
railways,  Buffalo  R.  Co.  vs.  Buffalo,  111  N.  Y.,  132;  Stern- 


30 

berg  vs.  State,  36  'Neb.,  307;  Parker  vs.  Railroad,  109  Mass., 
506.  And  to  eanals  Perriae  vs.  Canal  Co.,  9  Howard  U.  S., 
172,  and  to /envies,  Stephens  vs  Powell,  1  Ore.,  283;  State 
m.  Hudson  Co.,  23  N.  J.  L.,  206;  Parker  vs.  Railroad,  109 
Mass.,  506  ;  to  toll  roads  and  bridges,  Covington  vs.  Sanford, 
94  Ky.,  689;  Ibid,  164  U.  S.,  578;  California  vs.  R.  Co., 
127  IT.  S.,  1. 

And  wharf  charges,  Ouachita  vs  Aiken,  121  U.  S  ,  444; 
and  to  telegraph  rates.  Mayo  vs.  Tel.  Co.,  112  N.  C,  343; 
R.  Commission  t'«.  Tel.  Co.,  113  N.  C,  213;  Leavell  vs.  R. 
Co.,  116  N".  C,  211;  People  w«.  Badd,  117  N.  Y.,  1;  States 
vs.  Edwards,  86  Me.,  105;  and  to  telephone  charges,  although 
the  telephone  is  covered  by  a  United  States  patent,  Hcckett 
vs.  State,  105  Ind.,  250;  Telephone  Co.  vs.  Bradbury,  106 
Ind.,  1;  Johnson  vs.  State,  113  Ind.,  143;  Telephone  Co. 
vs.  State,  118  Ind.,  194  and  598;  Telephone  Co.  vs.  B.  &  O. 
Telegraph  Co.,  66  Md.,  399. 

AS  TO  GAS    COMPANIES, 

the  right  of  the  State  to  regulate  rates  either  itself  nr  through 
power  conferred  upon  municipal  corporations  is  beyond  con- 
troversy. Toledo  W.S.  Gas  Co  ,  5  Ohio  State,  557;  State  vs. 
Gas  Light  Co.,  34  Ohio  State,  572;  Zanesville  vs.  Gas  Light 
Co.,  47  Ohio  State,  1;  JSTew  Memphis  vs.  Memphis,  72  Fed. 
Rep.,  952;  Capital  City  y.-?.  Des  Moines,  Ibid,  829;  Gas  Light 
Company  vs.  Cleveland,  71  Fed.  Rep.,  610;  State  vs.  La- 
clede, 102  Mo.,  472;  Foster  vs.  Findlay,  5  Ohio  C.  C,  455; 
Manhattan  vs.^  Trust  Co.,  16  U.  S.  A  pp.,  588;  State  vs.  Cin- 
cinnati, IS  Ohio  State,  262.  The  power  to  regulate  water 
rates  has  already  been  cited  as  decided  in  Spring  Yalley  vs. 
Schottler,  110  U.  S.,  374,  and  the  right  to  authorize  muni- 
cipal bodies  to  regulate  ibe  price,  weight  and  quality  of  bread 
is  declared  upon  the  precedents  to  be  settled  law.  Mobile  vs. 
Yuille,  3  Ala.,  137;   Munn  vs.  People,  69  IlL,  80. 

The  power  to  regulate  the  tolls  of  public  mills  is  declared, 


31 

citing  many  precedents,  in  State  vs.  Edwards,  86  Me.,  102; 
West  vs.  Rawson,  40  \V.  Va.,  480;  also,  the  power  to  fix 
the  rates  for  the  salvage  of  logs.  West  Branch  vs.  Fisher, 
150  Pa.,  475;  Pere  Marquette  vs.  Adams,  44  Mich.,  403; 
Underwood  vs.  Pelican  Boom  Co.,  76  Wis.,  76.  The  above 
are  but  a  few  of  the  cases  recognizing  the  inherent  public  right 
to  regulate  those  matters,  and  there  are  still  any  others  recog- 
nized as  subject  to  public  regulation. 
It  must  not  be  forgotten  that  there  is  a 

BROAD    DISTINCTION  IN    THE  LAW, 

running  through  all  the  ages,  between  the  above  and  similar 
avocations  "affected  with  a  public  interest,"  as  to  which  the 
sovereign  or  the  public  has  the  right  to  regu^.ate  anri  fix  rates 
and  purely  private  matters,  as  farming,  selling  merchandise, 
manufacturing  and  similar  matters,  which  are  purely  private 
in  their  nature,  and  as  to  which  the  public  has  never  claimed 
or  exercised  the  right  of  regulation.  It  is  by  ignorance,  or 
an  affected  ignorance,  of  this  broad  distinction  in  the  law  and 
which  is  based  on  the  essential  difference  in  the  nature  of 
things,  that  denial  has  been  sometimes  attempted  (by  those 
not  lawyers)  of  the  right  of  public  regulation  in  matters  as  to 
which  the  public  has  always  possessed  that  right. 

From  the  beginning  of  this  State  as  a  Colony,  our  statute 
books  have  borne  provisions  regulating  the  tolls  of  public 
mills,  and  until  very  recent  years  the  county  courts  fixed  the 
charges  of  inn-keepers,  hotels  and  bar-rooms.  The  latter 
regulations  have  been  abandoned  of  late  years,  not  because 
the  power  does  not  still  exist,  but  because  its  exercise  was  no 
longer  required  to  protect  the  public,  tbe  multiplication  of 
inns  and  hotels  furnishing  sufficient  protection  by  reason  of 
competition.  The  regulation  of  the  tolls  of  grist  mills,  fer- 
ries and  the  like  is  still  exercised. 


32 


AS  TO  RAILROADS  AND  PUBLIC  CARRIERS 

the  complete  list  of  decisions  uniformly  sustaining  the  public 
right  to  fix  their  charges,  both  in  State  and  Federal  courts, 
'would  fill  many  pages.  Enough  has  been  cited  to  enable  the 
student  to  see  that  the  principle  is  absolutely  settled  beyond 
possibility  of  question,  and  he  can  trace  up  other  decisions  to 
that  efl'ect  if  so  inclined. 

In  the  great  case  of  People  vs.  Budd,  117  N.  Y.,  22,  the 
highest  court  of  Wew  York,  speaking  through  one  of  the 
ablest  and  purest  judges,  said:  "Society  could  not  safely 
surrender  the  power  to  regulate  by  law  the  business  of  cora- 
mon  carriers.  Its  value  has  been  infinitely  increased  by  the 
conditions  of  modern  commerce  under  ^\hich  the  carying  trade 
of  the  country  is  to  a  great  extent  absorbed  by  corporations, 
and  as  a  check  upon  the  greed  of  these  consolidated  interests 
the  legislative  power  of  regulation  is  demanded  by  imperative 
public  interest.  The  same  principle  upon  which  the  control 
of  common  carriers  rests  has  enabled  the  State  to  regulate 
in  the  public  interest  the  charges  of  telephone  and  telegraph 
companies,  and  to  make  the  telephone  and  telegraph,  these 
important  agencies  of  commerce,  subservient  to  the  wants  and 
necessities  of  society.  These  regulations  in  no  way  interfere 
V7ith  a  rational  liberty — liberty  regulated  by  law."  This  de- 
cision was  alfirraed  by  the  Supreme  Court  of  the  United 
States. 

DELEGATION  OF  POWER. 

The  authority  of  the  Legislature  to  empower  a  railroad  com- 
mission to  prescribe  reasonable  rates  for  common  carriers  is 
held  constitutional  in  numerous  cases,  among  them  Railroad 
Commission  case,  110  IT.  S.,  307;  Reagan  vs.  Trust  Co.,  154 
U.  S.,  362,  393;  State  <ys.  Chicago,  38  Minn.,  281;  Chicago 
vs.  Day,  35  Fed.  Rep.,  866  ;   Tilley  vs.  Savannah,  4  Woods. 


44:9;  Clyde  -^6'.  Ilailroad,  57  Fed.  Rep.,  436;  Chicago  vs. 
Jones,  149  111.,  361;  Stone -y^.  Railroad,  62  Miss.,  602;  Stern 
vs.  N'atchez,  62  Miss.,  646;  McWhorter  vs.  Railroad  Co.,  24 
Ma.,  417;  Storrs  vs.  Railroad,  29  Fla.,  617;  State  vs.  Fre- 
mont, 22  Neb.,  313,  and  in  our  own  State.  Express  Co.  vs. 
Railroad,  111  IST.  C,  463;  and  the  Legislature  may  prescribe 
that  such  rates  shall  be  deemed  prima  facie  reasonable,  State 
vs.  FreiDont,  supra;  Chicago  vs.  Dey,  supra. 

JUDICIAL     INTERFERENCE. 

The  rights  of  the  courts  to  interfbre  with  the  rates  fixed  by 
the  law-making  power  was  denied  in  Munn  vs.  111.,  aud  seve- 
ral other  cases  in  94  U.  S.,  and  in  Budd  vs.  K.  Y.,  above 
cited,  but  in  Reagan  vs.  Trust  Co.,  154  U.  S.,  362  and  413, 
and  St.  Louis  vs.  Gill,  156  U.  S.,  649,  it  has  been  since  de- 
clared that  the  fixiog  and  enforcement  of  unreasonable  and 
unjust  rates  for  railroads  was  unconstitutional.  But  just 
what  rates  will  be  considered  unreasonable  and  unjust  has 
not  yet  been  stated  by  the  United  States  Supreme  Court. 
The  discussion  in  the  cases  just  cited,  as  well  as  in  others, 
plainly  shows  a  disposition  to  interfere  and  condemn  legisla- 
tive rates  only  \^  hen  it  is  clear  that  their  enforcement  amounts 
to  a  destruction  of  the  value  of  the  property.  In  Munn  vs. 
People,  69  111..  80,  and  Chicago  vs.  Dey,  35  Fed.  Rep.,  866, 
it  was  held  that  rates  fixed  by  legislative  authority  that  will 
give  some  compensation,  however  small,  to  the  owners  of 
railroad  property,  cannot  be  held  insufficient  by  the  courts. 
"This  rule  leaves  large  power  to  the  Legislature,  and  would 
sanction  statutes  which  ^ut  down  railroad  dividends  to  a  mere 
pittance.  But  it  is  hard  to  see  how  any  other  rule  can  be 
adopted  which  will  not  in  effect  deny  the  right  of  the  Legisla- 
ture to  make  regulation  of  such  rates,  or  else  leave  little  more 
than  a  shadow  of  such  power  in  the  Legislature  while  the  real 
power  is  assumed  by  the  courts."  The  effect  of  the  reduced 
rates  on  the  entire  line  of  road  is  the  correct  test  and  not  that 
3 


34 

they  are  unreraunerative  on  a  certain  part  of  the  line.  St. 
Louis  t'5.  Gill  156  U.  S.,  649;  Missouri  vs.  Sncith,  60  Ark., 
221. 

In    Dow  vs.  Beidelman,  125  U.  S.,  680,  it  was  held  that 
rates  which  w'ould  pay 

ONE  AND  ONE-HALF  PER  CENT. 

on  the  original  cost  of  the  road  v\  ere  not  illegal,  when  the  road 
is  held  b}^  a  re-organized  company  or  its  trustees  after  fore- 
closure, lu  Missouri  vs.  Smith,  supra,  it  was  held  that  rates 
sufficient  to  defiay  current  expenses  and  repairs  and. some 
profit  on  the  reasonable  cost  of  building  the  road  could  not 
be  interfered  with,  though  they  were  not  high  enough  to  pay 
interest  on  all  its  debts,  since  they  may  have  been  incurred 
through  extravagance  or  mismanagement. 

In  Chicago  vs.  Wellman,  143  U.  S.,  339,  the  Act  of    the 
Legislature  of  ^yisconsin  fixing 

RAILROAD   FARES   AT  TWO  CENTS   PER  MILE 

was  sustained,  the  court  saying  that  "before  the  courts  would 
declare  such  an  act  unconstitutional  because  the  rates  pre- 
vented stockholders  receiving  an}^  dividend  or  bondholders 
any  interest,  the  court  must  be  fully  ad\ised  as  to  what  was 
done  \^ith  the  earnings,  otherwise  b\'  exorbitant  or  unreason- 
able salaries  or  in  some  other  improper  way  the  company 
might  tax  the  public  with  unreasonable  charges.  Unless  such 
•  things  are  negatived  by  proof  of  reasonable  salaries  and  ex- 
'  penses,  or  if  the  record  is  silent,  the  legislative  rate  will  be 
sustained."  This  is  a  valuable  and  noteworthy  decision,  and 
no  judge  dissented  from  so  just  a  ruling.  The  same  principle 
is  re-affirmed  in  Reagan  vs.  Trust  Co.,  154  LT.  S.,  at  p.  412. 
In  the  most  recent  case,  Livingston  vs.  Sanford,  164  U. 
S.,  578  (decided  December,  1896),  the  court,  while  maintain- 
ing that  ordinarily  the  rates  must  not  be  such  as  to  leave  the 
owners  no  profit  at  all,  says:    "We  could  not  say  that  the  Act 


35 

\^as  unconstitutional  because  the  company  (as  is  alleged  and 
admitted)  could  not  earn  more  than  four  per  cent,  on  its  capi- 
tal stock.  It  cannot  be  said  that  a  corporation  is  entitled  as 
of  right  and  without  reference  to  the  interest  of  the  public  to 
realize  any  given  per  cent,  on  its  capital  stock.  When  the 
question  arises  whether  the  Legislature  has  exceeded  its  con- 
stitutional power  in  prescribing  the  rates  to  be  charged  by  a 
corporation  controlling  a  public  highway, 

STOCKHOLDERS   ARE  NOT  THE   ONLY   PERSONS 

whose  rights  and  interests  are  to  be  considered.  The  rights 
of  the  public  are  not  to  be  ignored.'"  The  court  further  says 
that  the  inquiry  as  to  whether  rates  are  reasonable  and  just 
includes  whether  they  are  reasonable  and  juijt  to  the  public, 
and  adds:  "The  public  cannot  properly  be  subjected  to  un- 
reasonable rates  in  order  simply  that  stockholders  may  earn 
dividends.  *  *  "■'"  If  a  corporation  cannot  maintain  such 
a  highway  and  earn  dividends  for  stockholders,  it  is  a  misfor- 
tune for  it  and  them  which  the  ('Onstitution  does  not  reejuire 
to  be  remedied  b}^  imposing  unjust  burdens  upon  the  public.'" 

CHARTER  EXEMPTIONS. 

In  Stone  vs.  Farmers'  Co.,  116  U.  S.,  307,  it  was  held  (re- 
versing the  Supreme  Court  of  Mississippi)  and  also  in  Stone 
vs.  111.,  116  U.  S.,  349,  that  a  provision  in  a  railroad  charter 
that  "the  company  may  from  time  to  time  fix,  regulate,  and 
receive  the  tolls  and  charges  to  be  received''  did  not  consti- 
tute a  contract  restricting  the  State  from  fixing  or  reducing 
charges  within  the  limits  of  its  general  power  to  declare  what 
shall  be  deemed  reasonable  rates.  So  a  charter  provision 
giving  a  railroad  company  "pov.er  to  charge  such  sums  for 
transportation  of  persons  and  property  as  shall  seem  desira- 
ble" or  "it  shall  deem  reasonable,''  does  not  preclude  the 
Legislature  from  prescribing  a  maximum  of  charges  which  it 


36 

may  make.  Peik  vs.  Chicag'O,  94  U.  S.  164;  Chicago  vs. 
Ackley,  Ibid;  Stone  m.  Wis.  94  U.  S.  181;  Chicago  vs. 
Munn,  134  U.  S.,  418;  Paicgles  vs.  Railroad,  108  U.  S.,  526; 
Laurel  Fork  vs.  V^est  Va.  Co.,  25  West  Ya.,  314;  and  this 
is  true  though  the  charter  expressly  gives  the  corporation 
power  "to  fix  its  own  rates,"  since  this  is  impliedly  subject 
to  legislative  power  to  require  them  to  be  reasonable.  Rail- 
road vs.  Miller,  132  U.  S.,  75;  Ruggles  vs.  People,  91  111., 
256;  Railroad  t'5.  People,  95  111  ,  313;  Wells  vs.  Oregon,  8 
Sawy.,  600,  and  the  same  has  been  repeatedly  held  as  to  gas 
companies  and  water  companies.  A  chartei  giving  a  railroad  a 
right  to  fix  its  rates,  if  not  beyond  a  rate  stated  in  the  charter, 
is  held  not  a  contract  but  subject  to  the  legislative  power  to 
fix  other  reasonable  rates  as  a  maximum  from  time  to  time  as 
money  chanires  in  value  or  operating  costs  diminish.  Georgia 
vs.  Smith,  70  Ga.,  794;  Winchester  vs.  Croxton,  97  Ky. — 
(1896.) 

The  statutory  regulation  of  the  rate  to  be  paid  for  the  use 
of  noney  is  another  striking  instance  of  legislative  authority 
to  regulate  rates.  And  ^ho  would  contend  that  the  courts 
have  pow  er  to  intervene  and  say  the  legislative  rate  is  too  low? 

The  Supreme  Court  of  the  United  States  has  tersely  put 

THE  TRUE  STATUS  OF  KAILROADS 

thus:  "They  are  chartered  and  built  for  public  benefit.  The 
pecuniary  profit  of  their  owners  is  purely  incidental."  Many 
railroad  owners  and  managers  would  reverse  this  if  they  could, 
and  as  far  as  they  are  permitted  they  act  upon  the  maxim 
•^'Railroads  are  operated  for  the  benefit  of  their  controllers 
and  managers.     The  public  benefit  is  purel^^  incidental." 

The  great  hindrance  to  achieving  the  public  beeefit  which 
is  the  legal  object  for  which  these  corporation  are  created  is 

THE  RELUCTANCE  OF  THEIR  MANAGERS 

to  concede  reasonable  and  just  rates.  Some  of  them  act  as 
if  they  believed  that  common  carriers  were  a  private  business 


37 

and  that  they  have  the  right  to  lay  upon  the  public  any  rate 
they  think  fit  to  raise  money  enough  to  pay  whatever  salaries 
they  see  proper  to  allovsr  themselves,  and  whatever  expen- 
ditures they  care  to  raal<e  and  interest  on  three  or  four  times 
the  stock  and  bonds  the  property  really  cost.  Yet  nothing  is 
farther  from  the  law. 

Railroad,  telegraph,  telephone  and  express  companies  are 
quasi  public  corporations,  the  charges  are 

IN  thp:  nature  of  public  taxation, 

and  the  public  have  the  right  to  look  into  the  nature  of  their 
expenditures  and  to  fix  the  rates  at  a  reasonable  net  profit 
above  economical  and  necessary  disbursements.  The  public 
right  in  this  regaid  is  fully  shown  by  the  uniform  and  numer- 
ous decisions  of  the  courts  I  have  cited  to  you.  ^ith  the 
enhanced  value  of  money  and  the  corresponding  fall  in  the 
prices  of  farm  produce  and  of  labor,  there  should  be  a  cor- 
responding fall  in  passenger  and  freight  rates.  This  would 
conduce  to  the  public  benefit  and  convenience,  and  would  at 
the  same  time  redound  to  the  benefit  of  the  corporations, 
which  instead  of  carrying  a  few  cars  half  full  of  passengers 
or  freight,  would  f5.nd  it  ^-o  their  benefit  as  well  as  that  of  the 
public,  to  reduce  their  rates  and  carry  two  or  three  times  the 
number  of  cars  with  full  loads.  The  present  charges  are  an 
embargo  on  travel  and  tralfic  alike. 

This  has  been  amply  shown  by  experierice  in  those  States 
in  w^hich  the  public  has  succeeded  in  reducing  the  rates,  and  by 
the  experience  of  a  line  in  our  oivn  State  whose  receipts  nearly 
doubled  during  its  reduction  of  rates.  Another  striking  in- 
stance is  the  reduction  of  postage  rates,  which  has  always 
been  followed  by  enormously  increased  receipts.  Indeed  the 
two  cents  per  mile  passenger  rates  already  prescribed  in  so 
manv  States,  and  vvhich 


38 


thp:  people  of  this  state  are  demanding, 

is  admitted  by  the  corporations  here  to  be  just,  since  their 
reports  show  that  their  receipts  average  2  1-5  cents  only  per 
mile  to  each  passenger — the  enormous  addition  which  makes 
the  charge  of  S-j  cents  to  the  public  is  caused  by  the  immense 
number  of  free  passes  issued  to  officeholders,  large  shippers, 
and  other  influential  people  or  favorites — the  very  people  who 
need  them  least — but  the  corporations  need  their  influence  to 
keep  the  public  quiet  under  exorbitant  exactions.  Thus,  in 
effect,  roughly  speaking,  every  three  passengers  who  pay  3:^ 
cents  per  mile  for  their  own  travelling  are  paying  also  for  the 
free  riding  of  another,  for  the  railroaas  carry  the  dead  heads 
at  the  expense  of  the  public. 

Governor  Pingree,  of  Michigan,  who  has  won  his  fight  for 
three  cents  street  car  faies,  and  two  cents  per  mile  railroad 
fares,  and  lower  freight  rates,  in  a  recent  speech  in  Boston, 
truthfully  said:  "Eailroad  operators  are  the  only  inen  in  the 
country  who  do  not  understand  that  the 

REMEDY   FOR  SHORT  RECEIPTS  IS  TO  LOWER  PRICES. 

Yet  manufacturers,  merchants  and  ever3'body  else  understand 
this."  Railroad  men  would  understand  this,  too,  but  that 
they  rely  on  having  a  monopoly.  In  1874,  when  the  Legis- 
lature of  Wisconsin  opened  the  fight  for  two  cent  fares  and 
lower  freight  rates,  their  action  was  sustained  by  the  Supreme 
Court  of  the  State,  Chief  Justice  Ryan  delivering  a  remark- 
ably able  opinion,  in  the  course  of  which  he  saitl  (Attorney 
General  us-.  Railroad,  35  Wis.,  583):  "It  may  well  be  that 
the  high  rates  charged  by  the  railroads  have  lessened  their 
own  receipts  by  crippling  the  public  interests.  The  affidavits 
of  experts  have  been  read  to  the  contrary,  but  they  are  only 
opinions,  founded  indeed  od  past  statistics.  Such  opinions, 
founded  on  such  statistics,  would  have  defeated  cheap  postage. 


39 

and  are  helping  to  day  to  defeat  a  moderate  tariff.  Experi- 
ence often  contradicts  such  theories.  The  interest  of  the  pub- 
lic in  this  regard  seems  to  be  identical  with  that  of  the  rail- 
road. We  think  that  there  must  be  a  point  where  the  public 
interest  in  railroads,  and  the  private  interest  of  the  corpora- 
tors meet,  where  the  service  of  the  public  at  the  lowest  prac- 
ticable rate  will  produce  the  largest  legitimate  income  to  the 
railroad.  It  seems  to  us  an  utter  delusion  that  the  highest 
tolls  will  produce  the  largest  income.  The  companies  have 
hitherto  absolutely  controlled  their  own  rates.  The  Legisla- 
ture now  limits  them.  The  companies  say  the  limit  is  too  low. 
Eut  there  is  no  occasion  for  heat  or  passion  on  either  side. 
The  people  and  the  Legislature  understand  well  the  necessity 
of  railroads  to  the  State  £.nd  the  necessity  of  dealing  fairly 
and  justly,  and  even  liberally  with  the  companies." 

And  the  same  can  be  said  of  the  people  of  North  Carolina. 
They  are 

A  JUST  AND   SENSIBLE    PEOPLE. 

They  understand  the  necessity  and  the  beuefit  of  railroads. 
There  is  no  hostility  to  railroads  as  such.  We  want  more 
of  them.  There  is  no  disposition  among  any  of  our  people 
to  deal  other  than  liberally  with  these  corporations.  There 
is  no  desire  to  fix  rates  unreasonably  low.  But  we  know  that 
rates  are  unreasonahly  high.  We  know  that  when  one  great 
line  voluntarily  reduced  its  rates  one-third,  it  nearly  doubled 
its  receipts,  and  that  these  lower  rates  were  stopped  by  an  in- 
junction illegally  granted  at  the  instance  of  a  rival  corpora- 
tion. Our  people  know  that  the  railroads  were  built  nearly 
entirely  with  our  money,  and  largely  with  ironey  from  the 
public  treasury.  We  know  that  by  shrewd  manipulation  the 
owners  of  the  original  stock  were  forced  to  sell  at  a  small  per 
cent,  of  the  original  cost,  and  that  the  controlling  manage- 
ment is  now  chiefly  dictated  by  non-resident  multi-million- 
aires, living  in  London  and  ISTew  York,  and  that  these  rail- 


40 

roads,  which  in  the  eye  of  the  law  "were  chartered  and  built 
for  the  public  benefit,  the  pecuniary  profit  of  the  owners  be- 
ing incidental  only,"  are  now  run  at  "the  highest  the  traffic 
will  bear,"  for  the  enrichment  of  non-residents  and  with 
precious  little  regard  to  our  advantage.     We  know 

THE  ENORMOUS  SALARIES 

paid  its  higher  officials,  who  are  also  provided  with  sumptuous 
private  palace  cars  and  staffs  of  servants,  private  secretaries, 
lawyers  and  newspapers  at  our  expense.  We  know  that  all 
of  these  expenses  come  out  of  the  toiling  masses,  from  whom 
they  are  collected  by  the  station  agents  as  surely  and  more 
rigidly  than  the  taxes  are  collected  by  the  sheriffs  and  col- 
lectors for  your  State  and  Federal  Governments.  And  we 
kno\\  too  that  we  have  full  power  through  our  representatives 
to  fix  every  charge  made  by  every  railroad  in  the  State. 

The  Supreme  Court  of  the  United  States  has  decided  in  the 
cases  I  have  quoted  to  you  that  the  public  in  fixing  rates  have 
the  right  to  know  the  amount  of  the  salaries  of  railroad 
officials  and  the  nature  of  their  disbursements,  that  it  may  be 
seen  how  high  it  is  necessary  to  fix  rates.  If  the  expendi- 
tures are  extravagant,  as  for  high  salaries,  or  illegal,  as  for 
lobby  expenses  or  running  new^spapers,  those  iterns  may  be 
disregarded.  The  public  have  the  same  right  to  be  informed 
as  to  all  these  matters  as  in  regard  to  the  salaries  and  expenses 
of  its  State  Government,  for  it  pays  them  both  equally.  The 
railroad  managers  need  to  learn  that 

THIS  IS  NO  IMPERTINENT  CURIOSITY, 

but  that  these  are  matters  of  legal  right,  and  that  their  man- 
agement and  rates  are  of  vital  interest  to  the  public  who  pay 
every  expenditure  they  make.  Yet  last  winter,  when  a  reso- 
lution asking  information  as  to  the  salaries  of  the  higher  rail- 
road officials  was  introduced,  some  of  them  affected  to  treat 


41 

it  as  an  inquiry  into  private  matters,  and  secured  the  defeat 
of  the  resolution  in  the  House,  though  it  passed  the  Senate. 
They  knew  the  investigation  ^ould  be  damaging,  and  they 
dared  not  let  the  people  know  hov^  much  they  were  taxed  for 
railroad  salaries  and  illegal  expenses.  We  know  from  their 
own  sho\i<ing  that  the  pro  rata  part  of  the  salaries  on  one 
tolerably  short  railroad  was  double  that  paid  Dy  the  entire 
State  to  the  Governor  and  all  the  other  Executive  oftiers  of 
the  State  Government,  and  that  the  salaries  and  emoluments 
of  more  than  cne  official  of  corporations  operating  in  this 
State  amount  to  more  than  a  dozen  times  what  the  State 
pays  its  Governor,  and  yet  both  are  paid  by  the  people,  and 
come  out  of  their  earnings  before  they  can  use  a  dollar  for 
themselves. 

In  coming  to  these  conclusions,  you  will  see  that  I  have 
advanced  no  idea  that  is  not  based  upon  the  reiterated  deci- 
sions of  the  highest  courts  in  the  land.  In  saying  these 
things  I  have  no  desire,  nor  has  anyone,  co  excite  any  pre- 
judice against  any  corporation,  except  that  opposition  which 
should  always  be  aroused  in  the  breasts  of  freemen  by  seeing 
their  fellows  illegally  oppressed,  and  their  meager  subsistence 
taken  from  them  to  support  the  luxury  and  idleness,  and  too 
often  the  vices  of  others.  We  should  be  men  who  ^^l'7ioiv 
their  rights,  and  knowing,  dare  maintain  theiny 

I  know  that  in  all  history  whenever  anj'  man  has  dared  to 
tell  the  people  their  rights,  and  to  tell  them  that  the\'  are  op- 
pressed, and  that  they  have  the  legal  right  to  stop  the  oppres- 
sion, it  makes  him  a  mark  for  every  hired  arrow,  and  every 
mercenary  bowman.  But  in  the  language  of  Martin  Luther, 
at  the  Diet  of  W^orms,  ^^  Here  1  stand — God  help  me — I  can 
do  no  other.''''  When  the  immortal  Vance  w^as  asked  to  say 
nothing  about  the  abuses  of  the  conscription,  that  it  would 
all  be  arranged,  he  replied:  "God  forbid  that  the  rights  and 
the  honor  of  North  ('arolina,  and  the  welfare  of  her  people, 
should   depend    upon   the  grace   and   mercy   of  a  conscript 


42 

bureau."  And  so  I  say  now  in  your  hearing,  that  "6^o<^ 
forbid  that  the  freedom  of  North  Carolina  from  unjust  exac- 
tions^ aud  the  toelfare  of  her  people^  should  depend  upon  the 
grace  and  mercy  of  Pierpont  Morgan^  and'  such  as  he.''''  We 
are  entitled  to  regulate  these  charges  of  common  carriers 
among  us,  as  an  immemorial  right  of  a  free  people  in  all 
times,  and  we  will  accept  no  petty  abatement  as  a  favor 
from  them.  The  decisiocs  I  have  quoted  conculsively  show 
that  the  public  not  only  have  a  right  to  fix  rates,  but  in  do- 
ing so  they  justly  should  allow  nothing  for  exorbitant  salaries, 
f^xtravagant  expenses,  illegal  disbursements,  nor,  after  dis- 
carding these,  anything  above  the  expenses  of  economical 
management  and  a  moderate  interest  on  the  real  value  of  the 
property,  for  the  law  is  just,  and  does  not  tolerate  dividends 
on  watered  stock  and  bonds. 

1  could  easily  show  you  that  the  sum  illegally  wrung  from 
the  people  of  Nurth  Carolina  above  the  legal  requirements 
above  stated  is  anuuallv  more  than 

DOUBLE  THE  ENTIRE  AMOUNT  OF  TAXES 

levied  for  your  State  Government,  If  the  men  of  1776 
are  to  be  commemorated  for  all  time  for  their  resistance  to  a 
little  illegal  tax  upon  tea,  the  men  who  shall  hereafter  step 
forward  and  shall  succeed  in  rescuing  Korth  Carolina  from 
the  enormous  pillage  exacted  from  her  and  from  which  her 
people  are  staggering  without  always  knowing  the  reason, 
will  deserve  to  be  remembered 

"  Far,  far  on,  in  summers  that  we  shall  not  see." 

All  corporations  in  North  Carolina  have  not  been  virilling 
plunderers  of  her  people.  Some  would  reduce  rates  if  others 
would  permit  thein.  Tw^o  conventions  of  the  m?nufacturers 
and  other  great  industries  in  the  middle  and  western  part  of 
our  State,  which  have  been  unduly  depressed  by  discrimina- 
tions against  us,  and  unjust  raies,  have  met  and  have  taken 


43 

steps  looking  to  some  relief.  In  the  eastern  part  of  the  State 
the  truckers  attempted  action  last  year,  but  received  slight 
attention.  The  great  railroads,  by  demanding  a  pooling  bill 
at  the  hands  of  Congress,  have  admitted  that  competition  is 
at  an  end.  As  that  safeguard  no  longer  remains  for  the  pub- 
lic, it  is  more  than  ever  essential  that  we  should  assert  and 
maintain  the  protection  given  the  public  by  its  right  to  regu- 
late rates.  Let  the  body  of  our  reople  consider  the  great  sums 
they  are  unjustly  paying  as 

ILLEGAL  TRIBUTE  MONEY    TO    THE    STRANGER, 

and  they  will  send  to  the  next  Legislature  a  bndy  of  men  who 
will  right  these  wiongs.  They  can  as  a  right  secure  a  relief 
for  seeking  which  they  will  be  laughed  at  when  it  is  asked  as 
a  favor.  I  have  shown  you  that  they  have  full  power  to 
secure  their  own  relief,  and  I  could  say  these  things  nowhere 
more  appropriately  than  to  ihe  more  than  four  score  young 
men  in  the  largest  law  school  in  the  State,  and  in  a  college 
maintained  by  a  bod}'  of  people  whose  love  of  civil  liberty  and 
human  rights  is  surpassed  by  none. 

"When  the  wicked  sor  of  Omri  reigned  as  King  over  Israel, 
he  was  vexed  by  the  free  speech  of  Elijah,  and  on  meeting 
him  he  cried  out  in  iierce  tones  and  with  flashing  eyes,  '^Art 
thou  he  that  trouhleth  Israel  ?"  The  prophet  of  Carmel  an- 
swered him  back,  ''It  is  not  I  that  trouhleth  Israel,  but  thou 
and  thy  house.''''  And  we  know  that  when  the  supreme  test 
came,  and  t'le  po\^  er  was  revealed  which  drove  those  oppres- 
sions and  abominations  out  of  the  land,  the  servants  of  Baal 
stood  in  the  presence  of  the  mocking  servant  of  God  and  an- 
swered him  not  a  vvord. 


POLITICAL  TLACHINGS  OF  THE  GOSFKL. 


Addkess  Before  Raleigh  District  Sunday  School  Conference, 
Franklinton,  N.  C,  June  15,  1807. 


Ladies  and  Gentlemen: 

The  very  handsome  terms  used  in  introducing  me  by  one 
whom  I  am  proud  to  call  my  friend  (Col.  W.  F.  Green),  but 
add  to  my  embarrassment  for  no  words  of  mine  could  come  up 
to  the  promise  of  such  a  preface. 

[  cannot  feel  myself  a  stranger  before  you.  The  bones  of 
my  ancestors  for  many  generations  repose  in  the  soil  of  this 
grand  old  county,  ray  relacives  are  living  among  you  to-day, 
scattered  throughout  its  limits  and  I  may  well  call  the  county 
itself  my  friend,  for  never  has  my  name  been  presented  for 
any  honor  that  the  men  of  Franklin  have  not  supported  it  as 
loyally  and  solidly  as  if  I  had  been  a  native  born  son  of  her 
soil.  Whenever  my  feet  press  the  hills  of  Franklin,  I  feel 
that  I  am  at  home  and  in  the  house  of  ray  friends. 

I  am  glad  to  meet  j'^ou  in  this  Sunday  School  convention  of 
our  church.  The  convention  and  its  prescribed  program  in- 
dicate an  interest  in  the  Sunday  School  work  which  can  only 
come  from  faithful  and  successful  effort  in  the  past,  and 
which  must  win  a  still  larger  success  in  the  future. 

Each  centur}'^  since  Christ  has  had  its  especial  feature  of 
relio:ious  development.  To  go  no  farther  back,  the  fifteenth 
century  was  marked  by  the  awakening  which  resulted  in  the 
next  century  in  the  Great  Reformation.  It  was  in  the  lif- 
teenth  century  that  printing  was  invented  and  the  Ijible  be- 
gan to  be   placed  in  the   hands  of  the   people.      It  was  then 


45 

that  Wycliff,  the  "bright  rnorning  star  of  the  Reformation," 

began  that  movement      After  the  fashion  of  that  time,  they 

attempted  to  suppress  the  great  truths  he  taught  by  throA^  - 

ing  his  ashes  into  the  river  Avon.      But  some  prophet  of  that 

day  said: 

"  The  Avon  to  the  Severn  runs, 
The  Severn  to  the  sea, 
And  Wyclif  s  dust  shall  spread  abroad 
Wide  as  the  waters  be." 

It  was  truly  prophetic,  for  the  next  century  saw  the'great 
flame  break  forth,  whose  torches  were  carried  by  Martin  Lu- 
ther, John  Calvin,  Melancthon,  Zwingle,  John  Knox  and  a 
host  of  others.  Then  came  the  seventeenth  century,  which 
was  marked  by  the  union  of  the  forces  of  religious  and  civil 
freedom,  when  Cromwell  and  his  Ironsides  swept  away  the 
enemies  of  both.  But  God's  truths  need  no  aid  from  vio- 
lence and  their  march  has  always  been  retarded,  not  aided, 
by  the  use  of  the  sword. 

The  eighteenth  century  was  marked  by  the  organization  of 
the  great  progressive  missionary  church  under  the  Wesleys. 
It  was  the  most  striking  movement  of  that  century,  and  its 
effect  will  be  the  most  lasting.  It  has  grown  as  no  other 
mov^emeht  has  grown.  It  has  embraced  the  continents  and 
islands  in  its  rapid  march,  until,  to  paraphrase  the  words  of 
another,  it  has  dotted  the  world  with  its  steeples,  and  begin- 
ning with  the  sun  in  its  rising,  and  keeping  company  with 
th3  hours,  it  has  encircled  the  globe  with  one  unbroken  suc- 
cession of  the  sacred  songs  of  Zion.  As  the  rise  of  the  Me- 
thodist church  and  its  triumphs  marked  the  last  century,  so 
the  development  of  the  Sunday  School  is  the  striking  religious 
feature  of  this.  It  has  placed  the  Bible  in  the  hands  of  the 
children,  just  as  Wycliff  and  the  great  Reformation  placed  it 
in  the  hands  of  the  laity. 

There  were  isolated  instances  of  Sunday  Schools  like  that 
opened  by  John  Knox  in  Scotland  in  1550,  by  Bishop  Framp- 


46 

ton  and  Joseph  Alleine  in  England  about  a  century  later,  and 
by  John  Wesley  in  Georgia  in  1735.  But  none  of  these  took 
root.  The  present  vast  system  begun  with  Robert  Raikes  at 
Gloucester  in  England  in  1780.  Though  bitterly  opposed  at 
first  by  Bishops  and  other  Church  authorities,  it  spread  at 
once,  and  its  development  has  been  little  short  of  marvellous. 
To-day,  only  a  little  more  than  ll>0  years  after  its  institution 
by  Raikes  with  four  teachers,  it  is  estimated  that  there  are 
more  than  200,000  Sunday  School  teachers,  ana  perhaps 
25,000,000  of  scholars.  This,  too,  is  only  the  Protestant 
branch.  In  the  Roman  Catholic  church  the  same  system  has 
been  adopted,  and  it  contains  a  Sunday  School  membership, 
probabl}"  equal  to  that  of  the  combined  Protestant  churches. 
The  vast  power  thus  exerted  for  the  reformation  and  eleva- 
tion of  the  human  race  is  beyond  the  power  of  calculation. 

Whenever  an  effort  is  made  to  educate  a  people  or  a  na- 
tion, it  is  always  of  course  by  the  establishment  of  schools  for 
the  children.  Who  ever  thinks  of  erecting  schools  and  col- 
leges for  grown  people,  and  ignoring  the  children?  Yet  that 
is  what  tbe  church  attempted  to  do  for  seventeen  centuries. 
It  endeavored  to  Christianize  the  world  by  instilling  the  prin- 
ciples of  our  religion  into  those  of  mature  growth,  leaving 
untouched  the  vast  masses  of  children  through  whom  this 
work  could  be  best  done.  Such  an  instance  of  blindness  to 
a  palpable  truth  is  unparalleled  in  history. 

When  the  great  Dr.  Samuel  Johnson,  «ho  hated  and  un- 
derrated all  Scotchmen,  was  cited  to  the  instance  of  Lord 
Brouo-ham,  who,  havincr  removed  to  England  when  voung, 
bad  risen  to  the  highest  position  in  the  kingdom,  the  testy 
old  doctor  said  he  was  an  instance  of  what  "could  be  done 
with  a  Scotchman  v;hen  caught  young." 

AH  over  the  wcrld  the  masses  of  earnest  and  active  Chris- 
tian workers  who  have  been  redeemed  trom  evil  influences  by 
Sunday  School  work,  and  who  have  becorue  powerful  forces 
for  the  christianization  and    betterment  of  the  world,    are 


47 

standing  proofs  of   what  can   be  done   with  any    race   \^  hen 
* 'caught  young,"  and  trained  up  as  they  should  be. 

It  is  very  certain  that  but  for  Sunday  School  training  vast 
numbers  of  men  would  grow  up  without  any  knowledge  of 
the  teachings  of  the  Bible,  and  without  any  impression  upon 
their  lives  of  its  precepts.  Once  grown  up  as  heathens,  the 
majority  of  them  would  remain  all  their  lives  really  heathen, 
as  so  many  men  still  are,  to  all  intents  and  purposes,  though 
living  in  so-called  Christian  lands. 

The  effectixe  work  of  the  Sunday  School  is  not  limited  to 
the  pupils.  It  has  its  influence  upon  the  teachers  themselves, 
"who,  by  teaching  others,  are  themselves  taught  the  great 
truths  of  the  Book  of  Bonks,  as  they  would  not  come  to  know 
them  in  any  other  way.  And  it  is  a  striking  benefit  too  that 
in  this  mode  so  large  a  portion  of  the  lay  element  is  utilized 
and  put  to  work  for  the  cause.  Strike  out  the  zeal  and  in- 
fluence of  Sunday  School  workers  and  relegate  the  church  as 
formerly,  solely  to  the  influence  of  its  overworked  clerical 
element,  and  there  would  be  almost  a  paralysis  in  the  church, 
and  I  say  it  with  the  greatest  deference  to  our  able  and  de- 
voted clergy. 

The  study  of  the  Scriptures  in  the  Sunday  School  gives  an 
accurate  knowledge  of  the  Bible  to  both  teachers  and  schol- 
ars, which  it  is  impossible  to  communicate  by  sermons  how- 
ever able  and  frequent.     Everyone  knows  this. 

The  Sunday  school  is  an  agency  in  developing  the  highest 
type  of  character  in  the  membership  of  the  church.  It  not 
only  creates  zeal  in  the  teacher  and  brings  home  to  teacher 
and  scholar  alike  the  influence  of  the  sublime  precepts  of  the 
gospel,  to  an  extent  not  otherwise  obtainable,  but  it  educates 
Christian  people  in  liberality  by  teaching  children  the  duty 
and  blessing  of  giving.  It  shows  them  the  beauty  of  Chris- 
tian lives  devoted  to  the  instruction  of  others.  It  brightens 
the  lives  of  little  waifs  who  are  brought  into  contact  with 
children  in  a  happier  condition  of  life,  and   they  are  thus  le- 


48 

claimed  to  the  services  of  humanity  and  God  by  seeing  that 
they  are  not  outcasts,  but  that  Christian  people  care  for  them 
and  have  regard  for  their  welfare.  Whea  the  children  of  the 
poor  have  the  truth  impressed  upon  them,  it  opens  wide  the 
door  of  their  opportunity  and  advanceirent  in  life.  Count- 
less numbers  are  thus  brought  to  become  useful  and  prosper- 
ous members  of  society  who  otherwise  would  have  been  the 
enemies  of  social  government,  and  of  an  authority  which 
would  mean  to  them  only  repression  and  continued  degrada- 
tion. 

These  and  many  other  reasons  can  be  given  for  the  vast 
benefit  Sunday  Schools  have  been,  not  only  to  the  church, 
but  to  civilized  government  as  well,  for  the  history  of  our 
civilization  in  every  age  has  been  its  degree  of  Christianity. 
In  fact  our  civilization  begins  with  the  incarnation  at  Bethle- 
hem. The  seed  of  mustard  has  grown  till  it  has  become  a 
great  tree,  and  all  nations  may  repose  under  its  branches. 

The  morality,  the  virtues,  the  faith,  the  benevolence,  the 
resignation  under  trials,  the  good  will  among  noen  taught  the 
children,  and  their  teachers  too,  by  the  thorough  Knowledge 
of  the  Scriptures  acquired  in  the  Sunday  schools  have  not 
only  a  wide  and  lasting  effect  upon  the  tone  of  society  and 
the  conduct  and  life  of  those  receiving  this  instruction,  but 
there  is  another  distinct  benefit  which  has  probably  not  been 
called  to  your  attention. 

The  highest  ideal  of  government  which  the  ages  have 
evolved,  is  that  of  a  government  of  the  people,  by  the  people, 
and  for  the  people.  Have  you  ever  thought  where  it  came 
from?  The  central  idea  in  the  teachings  of  Christ  is  that 
between  the  supremest  of  supreme  power  and  the  hu.rr  blest 
individual  the  dignity  of  manhood  requires  and  permits  no 
human  intermediate.  There  ^'■ou  have  the  great  thought  of 
the  equality  of  mankind.  ISTo  one  ever  conceived,  or  an- 
nounced, that  idea  before,  i^^o  heathen  philosopher  ever 
dreamed  it.     In    every  pronouncement  He   ever  made.    He 


49 

taught  the  nothingness  of  human  rank,  the  worthlessness  of 
distinctions  of  wealth.  He  first  taught  the  brotherhood  of 
man.  He  taught  that  men  should  live  not  for  themselves  but 
for  the  race,  for  their  fellow  men.  He  told  the  rich  young 
man  to  sell  all  that  he  had,  to  give  it  to  the  poor  and  follow 
Him.  He  himself  taught,  by  the  sublimity  of  His  example, 
for  he  went  about  doing  good.  Freedom  and  liberality  were 
barely  conceived  of  before  Plis  day.  They  were  not  so  much 
as  named  even,  save  in  the  short-lived  republics  of  Greece 
and  Rome.  And  in  them,  having  no  true  basis,  they  soon 
withered  and  perished.  In  Christ  alone  the  basis  of  real  and 
lasting  freedom  was  first  laid  in  the  equality  and  brotherhood 
of  the  human  race. 

"We  may  speak  of  Tell,  of  Bruce  of  Bannockburn,  of  Wash- 
ington, but  viewed  as  a  man,  the  great  apostle  and  annunoi- 
ator  of  human  liberty  and  equality  is  the  Carpenter  of  Naza- 
reth. If,  as  the  poet  has  said,  Jesus  \^as  the  first  true  gen- 
tleman that  ever  lived,  it  is  equally  true  that  he  was  the 
founder  of  our  civil  and  religious  freedom.  The  freedom 
with  which  Christ  made  us  free  is  certainly  a  moral  freedom, 
a  freedom  from  the  shackles  of  sin,  but  it  is  also  a  freedom 
of  thought  and  action  from  tyrannical  restraint. 

The  world  was  slow  to  perceive  the  full  force  of  the  new 
ideas  taught  by  the  Sermon  on  the  Mount,  and  by  every  act 
and  speech  of  the  Master.  Indeed  the  world  does  not  yet, 
after  nearly  nineteen  centuries,  fully  grasp  and  comprehend  the 
true  intent  and  meaning  of  his  words.  Having  eyes  to  see 
and  ears  to  hear,  we  do  not  understand.  The  words  are  yet 
too  strong  for  us.  We  paraphrase  them,  we  give  them  a 
milder  meaning,  but  vie  are  growing  into  the  light.  We  are 
beginning  to  discern  in  dim  outline  the  pathway  upon  which 
shines  the  Star  of  Bethlehem.  There  are  a  fe^  who  begin 
to  understand  fully  whither  it  leads,  to  the  vast  masses  of 
men  the  words  are  yet  too  strong  for  poor  hunaan  nature. 
But  all  now  know  that  the  teachings  of  Christ  are  the  real 
4 


50 

source  of  all  democratic  forms  of  government.  I  do  not  use 
the  word  in  a  party  sense,  but  in  the  broader  meaning  of  a 
government  which  is  in  the  interest  of  the  people  and  not  in 
behalf  of  the  privileged  few  —privileged  as  in  some  countries 
because  of  inherited  wealth,  or  as  in  this  country,  by  acquired 
wealth.  In  the  eyes,  and  in  the  plain  words  of  the  Master, 
wealth  confers  no  privileges,  but  imposes  fearful  responsibili- 
ties and  duties. 

Mr.  Stevens,  in  his  great  work  on  the  "War  Between  the 
States,"  well  says,  that  there  is  a  political  force  in  ideas, 
and  that  before  it  ''constitutions  and  compacts  are  but  as  bar- 
riers of  sand  before  the  resistless  march  of  the  ocean."  The 
powers  and  forces  of  this  world,  and  the  spirits  of  darkness 
have  slowly  but  steadily  retreated  before  the  Christ-taught 
doctrines  of  the  equality  of  men  before  God,  the  essential 
unity  of  the  human  race,  the  brotherhood  of  man  and  free- 
dom of  soul,  mind  and  body.  No  other  religion,  no  other 
teacher  ever  enunciated  these  great  truths.  In  those  ideas 
lay  the  embryo  of  the  political  equality  of  men.  If  before 
the  Great  Creator  the  humblest  creature  stands  the  equal  of 
the  highest  and  greatest,  then  it  follows  that  all  distinctions 
of  birth,  all  inequalities  of  fortune  and  rank,  all  ditferences 
of  opportunity,  education  and  capacity  are  mere  accidents 
and  not  to  be  counted  as  merits.  If  these  distinctions  are 
artificial  and  not  inherent,  then  the  civil  equality  of  man  and 
the  brotherhood  in  political  rights  are  undeniable  truths. 
The  liberty  that  is  based  on  equality  and  fraternity  is  widely 
different  from  the  liberty  which  was  the  ideal  of  the  short- 
lived Greek  and  Roman  republics. 

Our  liberty,  based  upon  the  gospel  of  equality  and  brother- 
hood, gives  us  freedom  of  thought,  freedom  of  speech,  free- 
dom of  conscience,  freedom  of  action. 

The  world  could  not  at  once  receive  these  great  ideas. 
They  needed  time,  centuries,  to  permeate  the  social  fabric, 
to  leaven   political  institutions,  to  work  their   way.      When 


51 

emperors  and  kings  essayed  to  patronize  the  church,  they  but 
corrupted  it  by  choking  the  free  operation  of  its  cardinal 
principles.  When  popes  and  cardinals  took  charge,  they  ob- 
structed the  developraeot  of  the  church,  for  to  them  equally 
with  king  and  emperor,  the  equality,  the  brotherhood,  the 
liberty  of  men  were  incomprehensible  and  antagonistic.  The 
master  had  said,  he  who  would  be  greatest  among  you,  let 
him  be  your  servant,  and  in  a  true  republic  the  highest  offi- 
cial is  not  a  ruler  but  a  servant. 

But  in  spite  of  king  and  cardinal,  pope  and  emperor,  the 
political  force  of  the  Christian  ideas  has  won  its  way.  The 
right  to  think,  to  speak,  to  act  freely  has  b«en  more  and 
more  asserted  as  men  came  to  feel  that  in  the  eye  of  the  ulti- 
mate tribunal,  rich  and  poor,  king  and  peasant,  master  and 
slave,  stood  on  the  same  level.  The  political  effect  of  such 
teachings  is  democracy.  The  true  source  of  political  self 
government  is  the  religion  of  Christ,  and  there  is  no 
force  more  potent  for  the  maintenance  of  that  form  of  gov- 
ernment thau  these  schools,  which  sow  the  thoughts  of 
equality,  brotherhood  and  liberty  in  the  minds  of  children. 
Here  is  the  seed  bed  of  civil  and  religious  freedom. 

Born  in  a  stable  and  cradled  in  a  manger,  the  Christ  came 
not  to  enforce  the  tyranny  of  hereditary  rank,  without  afoot, 
of  land  to  call  his  own  he  did  not  exalt  the  claims  of  wealth, 
without  a  roof  to  cover  his  head,  and  with  poor  fishermen 
for  his  companions,  he  came  not  as  the  champion  of  power, 
but  to  assert  the  truth  that  "where  the  Spirit  of  the  Lord  is, 
there  is  libert}i." 

From  Marathon  to  Morgarten,  from  Bannockbura  to  Bunk- 
er's Hill,  fields  have  grown  red  in  the  struggle  for  the  free- 
dom of  man,  but  the  teachings  of  Christ,  viewed  from  a  po- 
litical standpoint  alone,  have  undermined  the  governments 
which  were  based  upon  force  and  fraud,  upon  rapine  and  in- 
justice, upon  wealth  and  corruption,  and  have  shaken  the 
forces  of  tyranny  with  more  fatal  effect  than    the  spears  of 


52 

the  Fhalanx  at  Marathon  or  the  rush  of  the  serried  columns 
of  liberty  at  Morgarten.  The  leaven  of  His  ideas  has  leav- 
ened the  political  measures  of  meal.  The  fire  which  went 
out  from  the  lowly  teacher  of  Nazareth  has  devoured  the 
cedars  of  Lebanon — the  great  thrones  of  the  world.  The 
small  stone  hewn  without  hands  has  grown  to  a  mountain  and 
overshadows  the  whole  earth. 

We  have  not  yet  grown  to  a  full  and  just  comprehension 
of  His  words.  We  are  slowly  approximating  it,  and  a  new 
light  shines  on  the  paths  of  men.  In  these  schools  you  are 
teaching  the  young  to  study  the  scriptures  for  themselves. 
They  are  taking  in,  without  the  prepossessions  and  prejudices 
of  age,  the  true  intent  of  the  words  of  the  Master.  The  Sun- 
day Schools  are  becoming  the  true  nurseries  of  the  republic. 
As  the  ages  pass  by  and  men  comprehend  more  and  more  the 
words  and  teachings  of  Christ,  human  conduct  will  shape  our 
institutions  into  a  likeness  to  the  equality,  justice  and  benev- 
olence which  shall  in  some  golden  age  of  the  future  make 
v^ant  and  misery  impossible  among  men. 

When,  on  July  4,  1776,  from  the  steeple  of  Carpenter's 
Hall,  in  Philadelphia,  the  clangor  of  the  Liberty  Bell  first 
rang  out.  was  it  a  mere  chance  co-incidence,  or  was  it  a  pro- 
vidential recognition  and  prophesy  of  heaven's  blessings  on 
our  cause,  that  the  historic  bell,  cast  as  it  was  years  before, 
bore  the  legend  "Proclaim  liberty  to  all  the  land  and  to  ail 
the  inhabitants  thereof,"  and  that  inscription  ^^as  copied 
from  the  Holy  Scriptures  ?  Certain,  however,  it  is  that  le- 
Jigious  and  civil  freedom  have  ever  gone  hand  in  hand,  one 
never  exists  without  the  other,  and  wherever  freedom  to  teach 
this  word  is  granted,  there  is  taught  the  sayings  which  lie  at 
the  basis  of  all  human  equality,  fraternity  and  liberty. 

Every  age  has  its  special  vices  as  well  as  its  special  reli- 
gious development.  The  past  centuries  w  ere  often  marked  by 
great  fame,  and  sometimes  great  fortunes,  acquired  by  mili- 
tary triumphs.     But  there  at  least  was  the  redeeming  feature 


63 

that  the  despoilers  had  the  manhood  to  risk  their  lives  and 
persons  on  the  battlefield.  This  age  is  marked  by  the  ac- 
cumulation of  still  vaster  fortunes,  but  it  is  done  -without  per- 
sonal risk,  without  heroism,  by  the  wholesale  deprivation  and 
spoliation  of  the  masses  of  the  people,  the  creators  of  this 
wealth,  in  the  interest  of  a  few  great  combinations  of  capital. 
Do  you  think  that  if  Christ  came  to-day  He  would  be  bet- 
ter received  in  this  so-called  Christian  age  and  land  than  He 
was  in  Judea  nineteen  centuries  ago?  Eemember  that  He 
was  a  carpenter  and  His  apostles  were  poor  laborers  and  fish- 


ermen.  .  Suppose  some  obscure  carpenter,  in  this  day  and 
generation,  accompanied  by  such  companions,  should  go  about 
the  country  denouncing  the  robberies  of  the  rich  and  the  cor- 
ruption in  high  places,  suppose  He  should  say  that  salvation 
could  only  be  had  by  believing  on  Him,  and  that  it  was  more 
possible  for  a  camel  to  pass  through  the  eye  of  a  needle  than 
for  a  rich  man  to  enter  the  kingdom  of  God;  suppose  such 
an  one  should  enter  your  rich  churches  where  the  preacher, 
reclining  on  soft  cushions,  offers  incense  and  adulation  to  the 
millionaire  bondholders  gorged  with  the  wealth  they  have  il- 
legally wrung  from  the  people  in  this  and  all  other  parts  of 
the  country,  and  with  his  knotted  cord,  should  scourge  those 
ministers  and  those  worshippers  of  mammon  from  these  tem- 
ples erected  for  the  worship  of  Almighty  God,  how  would  he 
fare?  Suppose  he  should  teach  the  naked  gospel  as  Christ 
taught  it,  that  wealth  confers  not  privileges  but  imposes  great 
duties  and  responsibilities.  Suppose,  further,  that  when  these 
men  who  daily  rob  a  whole  people  of  their  just  earnings  shall 
be  wont  to  give  a  hundred  dollars  here,  a  thousand  yonder,  a 
million  to  this  hospital,  two  millions  to  yonder  college,  and 
every  time  they  thus  give  back  a  small  part  of  their  stealings 
they  should  cause  every  newspaper  in  the  land  to  proclaim 
their  magnificent  generosity,  and  that  this  obscure  carpenter, 
with  his  bare-footed  followers,  should  denounce  such  hypo- 
crites, as  He    of  jS^azareth  did  those  in  His  day,  who  in  like 


54 

■manner  when  they  gave  their  alms,  had  a  trumpet  blown 
before  them,  and  suppose  that  obscure  man,  who  was  no  re- 
specter of  persons,  had  aroused  their  fears  as  tvell  as  their 
hate  by  his  miracles  which  should  cause  the  common  people 
to  hear  him  gladly,  and  what,  I  a&k,  would  this  generation  do 
to  such  a  man?  If  it  did  not  crucify  him,  it  would  be  only 
because  of  the  influence  of  His  teachings  which  in  the  lapse 
of  nineteen  centuries  have  given  the  masses  a  power  they  did 
not  have  in  Judea.  The  millionaires  and  their  tools,  the 
preachers  that  worship  +hera,  the  papers,  whether  church  or 
secular,  that  deify  them,  and  all  the  other  followers  of  Mam- 
mon would  hate  Christ,  as  those  other  rich  men  hated  Him 
in  the  coasts  of  Jordan  and  Galilee  nineteen  centuries  ago. 
and  as  they  to-day  reallv  hate  every  one  who  truly  teaches 
His  sayings  in  their  purity,  and  as  these  children  read  them  in 
their  Sunday  Schools,  If  the  rich  syndicates  and  trusts  and 
other  robbers  of  the  people  of  this  day  and  their  toadies  and 
beneficiaries  were  not  allowed  to  crucify  Christ,  they  would 
M  ish  to  do  it.  They  would  surely  hale  Him  into  prison  and 
denounce  Him  and  His  followers  as  anarchists,  socialists,  and 
communists. 

Is  not  this  true,  men  and  brethren? 

If  Christ  came  to-day  who  would  receive,  and  who  would 
crucify  Hira?  Have  you  ever  thought  about  it?  The  pure 
minded  little  children  ^v  ould  receive  Him.  They  did  so  when 
he  came  nineteen  centuries  ago.  "Suffer  little  children  to 
come  unto  me,  for  of  such  is  the  kingdom  of  heaven."  Then 
the  good  women  of  this  land  would  gladly  receive  him,  for 
they  also  did  it  nineteen  centuries  ago. 

"  Not  she  with  trait' rous  kiss  her  Master  stung, 
"  Not  she  denied  Him  with  unfaithful  tongue, 
"  She,  when  apostles  fled,  could  danger  brave, 
"  Last  at  His  cross  and  first  at  His  grave. ' ' 

There  are  dancing  daughters  of  Herodias  and  other  women 
wrapped  up  in  self,  and  the  deceitfuiness  of  this  world  now 


55 

as  then,  but  nov^  as  then  all  good  women  would  gladly  follow 
Him,  And  then  among  the  men  He  would  recruit  His  fol- 
lowers, just  as  of  old,  for  the  "common  people  heard  Him 
gladly."  Those  "ohose  faces  are  darkened  by  the  searching 
glances  of  the  sun  and  their  hands  hardened  by  toil,  would 
figure  largely  among  His  followers.  And  so  woald  the  hon- 
est men  of  whatever  profession  and  whatever  calling,  who 
are  striving  for  modest  competence,  and  in  whose  hearts  the 
greed  of  gold  has  not  burnt  out  all  traces  of  humanity  and 
fair  dealing-  and  of  "that  divinity  which  should  be  within 
us."  But  not  many  mighty  nor  man}''  rich  shall  be  called. 
It  was  so  of  old.  They  who  form  great  syndicates  and  trusts 
to  rob  the  people,  and  they  who  gather  where  others  have ' 
sown  would  be  foremost  among  those  v^'ho  would  crucify 
Him.  For  it  was  He  nho  said  it  and  we  know  that  His  say- 
ing is  true,  that  a  rich  man  can  no  more  enter  into  the  king- 
dom than  a  camel  can  pass  through  the  eye  of  a  needle. 
This  saying  may  offend  some.  His  saying  did  so  in  His  day 
and  "many  left  off  following-after  Him." 

The  great  evil  of  this  day  is  the  worship  of  wealth,  anrl  it 
makes  no  matter  to  its  worshippers  that  we  know  that  every 
vast  estate  is  necessarily  accumulated  by  robbery  of  the  peo- 
ple— for  there  is  a  modest  limit  in  the  nature  of  things  to  the 
accumulations  which  can  be  made  by  diligence,  and  thrift  and 
economy  and  honest  industry.  The  free  opportunity  for 
honest  accumulations  is  the  glory  of  our  institutions,  but 
these  vast  estates  are  not  made  in  that  way.  They  are  made 
by  processes  which  should  consign  their  holders  rather  to 
your  penitentiaries.  Their  very  size  proves  they  are  not 
honest  accumulations.  Was  Christ  the  Son  of  God?  He 
said  that  such  rich  men  could  in  no  wise  enter  the  kingdom 
of  God.  H  it  was  true  when  He  said  it,  it  is  true  to-day. 
The  so-called  ministers  of  God  who  pardon  such  offences  be- 
cause of  the  gift  of  a  small  part  of  the  sums  stolen  to  colleges, 
to  churches,  and  sometimes  to  the  ministers  themselves,  are 


56 

QO  u-hit  better  than  the  sellers  of  indulgences  whom  Luther 
scourged  out  of  Germany. 

Our  people  are  being  robbed  by  wholesale.  They  do  not 
receive  the  just  re^vards  of  their  labors.  They  are  being  pau- 
perized and  kept  in  want  while  a  few  men,  by  trick  and  com- 
binations, are  gathering  to  themselves  the  earnings  of  a  con- 
tinent. Yet  how  many  ministers,  how  many  leading  church 
members,  how  many  church  papers  are  denouncing  the  rob- 
bers and  the  wrong  as  the  Master  did,  and  as  it  is  still  writ- 
ten in  His  word?  How  many  indeed  are  pursuing  an  oppo- 
site course?  I  condemn  no  man.  Let  each  one's  own  con- 
science answer  him. 

Search  all  history,  and  you  will  find  no  age  when  the  rob- 
bery of  the  just  earnings  of  the  masses  was  more  systematic, 
more  shameless  and  less  resisted  than  to-day.  There  was 
never  a  time  when  the  worship  of  great  riches,  however  bad- 
ly acquired,  was  more  open  than  now.  While  the  pure  in 
heart  are  communing  with  the  invisible  God  on  the  summit, 
amid  ihe  clouds  and  darkness  that  are  round  about  Him,  vast 
numbers,  and  among  them,  as  of  old,  many  Levites  are  bow- 
ing down  to  the  Calf  of  Gold,  and  they  say  to  us,  "these  be 
thy  Gods,  O  Israel."  You  know  that  when  Moses  and  Joshua 
reproached  him  with  his  conduct,  Aaron  laid  the  fault 
on  the  people,  and  said  that  to  please  them  he  had  thrown 
the  gold  ornaments  into  the  fire  and  "there  had  come  out 
this  calf,"  implying  that  it  was  accidental  (though  he  did  not 
dare  to  say  so)  and  that  he  was  in  nowise  responsible.  So  in 
this  country,  in  which  the  public  opmion  of  to-day  can  be- 
come the  law  to-morrow,  he,  who,  like  Aaron,  does  not  en- 
lighten it,  but  on  the  contrary,  without  resistance  to  the  rob- 
bery of  the  people,  bows  down  to  those  who  have  acquired 
their  earnings,  in  effect  says  with  the  idolaters  of  old,  w^e  did 
not  do  it,  we  merely  cast  the  gold  into  the  fire,  or  permitted 
it  to  be  done,  and  "there  came  out  this  calf."  Hence  we 
are  not  to  blame  for  worshipping  it.     For  my  part,  I  believe 


57 

that  something  more  is  required,  and  that  resistance  to  wrong 
is  obedience  to  God.  The  Bible  these  cnildren  read  is  not  a 
mere  collection  of  moral  sayings,  but  it  is  intended  to  govern 
the  private  and  public  conduct  of  men  and  of  nations. 

The  Talmud  of  the  Hebrews  has  a  true  saying  that  if  "the 
v^orld  shall  ever  be  reformed  and  saved  it  will  be  by  the 
breath  of  the  school- children."  And  if  this  world  is  to  be 
redeemed  from  this  subservience  to  wealth  which  subjects  our 
people  to  robbery  and  our  children  to  poverty,  it  will  be  be- 
cause of  the  saving  words  of  the  Master  which  are  being  im- 
pressed upon  the  tender  hearts  of  the  children  in  the  Sunday 
Schools  of  the  land.  There  is  a  saving  strength  in  His  words, 
which  if  received  in  simple  faith,  can  redeem  the  world,  both 
for  the  time  that  now  is  as  well  as  for  that  which  shall  be 
hereafter. 


Revision  of  Constitution  of  United  States— Election 

of  Judges,  Senators  and  Postmasters 

by  the  People. 


ABDKESa   TO   THE   BaR   ASSOCIATION   OF   TENNESSEE, 

At  Nashville,  July  30th,  1897. 


Gentlemen  of  The  Bar  Association: 

There  is  a  kind  of  freemasonry  among  lawyers,  which,  like 
that  "touch  of  nature  which  turns  the  whole  world  kin," 
makes  a  lawyer  feel  at  home  wherever  there  is  a  gathering 
of  lawyers.  I  am  glad  to  meet  your  Bar  Association  and  to 
congratulate  you  upon  the  success  you  have  won.  Such  as- 
sociations raise  the  standard  of  the  profession,  and  indicate 
an  esprit  du  corps  which  is  both  highly  honorable  and  bene- 
ficial. 

To  North  Carolinians,  the  success  and  progress  of  Tennes- 
see are  almost  as  gratifying  as  our  own.  Tennessee  is  the 
daughter,  and  the  mother  State  can  never  forget  it.  When 
N"orth  Carolina  was  recognized  as  a  sovereign  State  by  the 
treat}'^  of  1783  with  Great  Britain,  her  limits  extended  from 
the  storm-lashed  Atlantic  to  the  mighty  inland  river,  which 
was  then  the  boundary  of  Spain,  When  we  set  you  up  in 
housekeeping,  we  acted  most  generously.  We  gave  ycu  that 
portion  of  our  soil  which  Tennesseeans  will  claim  was  the 
richest  and  choicest  part  of  our  domain.  In  extent  we  gave 
you  nearly  half  of  our  possessions.  North  Carolinians  first 
settled  your  territory  and  then  we  sent  you  from  time  to 
time,  as  reinforcements,  a  large  part  of  the  most  energetic 


59     • 

and  enterprising  element  of  our  population.  You  were  not 
unappreciative.     Three  men  whom  we  sent  you,  you   made 

PKESIDENTS  OF  THE  UNITED  STATES. 

We  sent  you  others  whom  you  made  governors,  senators, 
judges,  generals  and  bishops,  and  besides,  you  have  dotted  your 
map  with  the  names  of  counties  and  tov^ns  which  duplicate 
numbers  of  those  in  the  old  home.  We  have  a  common  inheri- 
tance of  glory.  No  small  part  of  the  N^orth  Carolinians  w  ho 
swarmed  up  the  fiery  crest  at  Kings  Mountain  were  men  from 
flolston  and  JSTolachucky.  When  the  stress  of  the  great  civil 
war  came  we  were  not  divided,  but  the  two  States  stood  to- 
gether in  good  and  in  evil  fortune,  and  alike  demonstrated 
the  native  valor  of  the  same  hardy  race.  If  Tennesseeans 
rode  with  Aforgan  'Ho  the  farthest  Xorth"  beyond  the  Ohio, 
it  w^as  North  Carolinians  who  carried  the  cross-barred  emblem 
of  our  fiery  Southern  faith  farthest  beyond  the  stone  wall  at 
Gettysburg.  Together  we  endured  the  unspeakable  horrors 
of  Eeconstruction,  and  together  we  have  emerged  from  the 
furnace  to  tai^e  our  places  in  building  up  a  restored  and  glo- 
rious Union  of  indestructible  and  co-equal  States. 

In  peace  and  in  war  we  have  stood  together,  and  if  Louis 
XIV.  could  say  after  his  memorable  treaty  with  Spain, 
"There  are  no  Pyrenees,''  we  can  more  truly  say  that  be- 
tween North  Carolina  and  Tennessee  there  are  no  mountains — 
the  land  merely  slopes  both  ways  from  an  imaginary  line 
which  marks  but  where  we  join  each  other  and  which  has 
never  divided  us.  You  have  now  in  progress  a  cani^ass  for 
a  revision  of  your  Constitution — a  movement  which,  I  am  in- 
formed, was  largely  set  on  foot  by  your  Bar  Association.  Of 
course,  hov\;ever,  on  that  subject  there  are  lawyers  on  both 
sides.  Our  profession  is  too  broad-minded  and  subtle  not  to 
perceive  that  there  are  two  sides  to  every  question,  and  we 
take  to  arguing  them  as  naturally  as  a  duck  takes  to  water. 
Of  the  merits  and  probable  fate  of  the  pending  question  of 


60 

the  revision  of  your  Constitution,  I  am  not  informed,  and  it 
would  be  highly  improper  in  me  to  express  any  opinion  upon 
a  subject  which  concerns  3'^ourselves  alone.  But  the  pen- 
dency of  that  question  has  suggested  a  cognate  one  which 
concerns  the  citizens  of  all  the  States,  and  which  is  beginning 
to  exercise  the  minds  of  men  everywhere — 

THE  REVISION  OF  THE  CONSTITUTION  OF  THE  UNITED  STATES. 

Indeed,  it  is  strange  that  the  subject  has  not  heretofore 
more  powerfully  attracted  the  attention  of  the  electorate  of 
the  Union.  Our  Federal  Constitution  was  adopted  110  years 
ago.  In  that  time  every  State  then  existing  has,  one  after 
another,  radically  revised  its  Constitution,  and  mcst  of  them 
more  than  once.  Indeed  there  is  no  State  which  has  not  revised 
its  Constitution  except  those  most  lately  admitted,  and  such 
have  been  the  rapid  changes  from  our  growth  in  population 
and  wealth  and  the  new  dangers  arising  to  be  guarded  against 
that  the  Constitution  of  New  York  imperatively  requires  that 
the  question  of  a  constitutional  convention  shall  be  submitted 
to  the  people  every  tiventy  years,  and  permits  it  oftener  than 
that  if  the  Legislature  shall  think  prosper. 

Even  in  so  conservative  a  State  as  North  Carolina  we  have 
had  three  Constitutional  conventions  since  the  war,  and  have 
besides  adopted  sundry  amendments  by  the  legislative  mode 
prescribed  in  the  Constitution.  If  this  is  true  as  to  the  States 
and  that  we  so  rapidly  outgrow  the  organic  law  prescribed 
but  a  few  years  before,  for  a  stronger  reason  it  is  true  of  the 
Federal  Constitution,  which  adopted  at  Philadelphia  in  Sep- 
tember, 1787,  for  an  entirely  different  people  and  amid  vastly 
different  surroundings,  is  now  like  the  clothing  of  boyhood 
worn  by  the  nearly  mature  man,  which  galls  and  binds  his 
massive  limbs  and  interleres  with  his  development.  To  say 
that  the  Federal  (constitution  of  1787 


61 


IS  NOW  A  MISFIT. 


in  many  respects,  is  a  self-evident  proposition.  It  could  not 
be  otherwise.  Great  and  wise  as  that  instrument  in  many 
respects  was,  it  was  intended  for  the  people  and  the  surround- 
ings of  that  day.     Therein  was  such  a  fitness  as  it  had. 

Its  creators  could  not  foresee  the  requirements  of  this  time, 
our  present  development  and  propositions  were  beyond  their 
wildest  dreams.  They  foresaw,  however,  that  in  the  process 
of  time,  the  Constitution  must  become  a  misfit,  and  hence 
that  instrument  provides  two  distinct  methods  for  its  own 
amendment.  If  by  any  possibility  they  could  have  foreseen 
what  provisions  were  most  suitable  in  a  Constitution  fitted 
for  this  day  and  adopted  it,  such  a  Constitution  would  have 
been  unfitted  for  that  time  and  unacceptable.  Each  genera- 
tion has  a  right  to  enact  its  own  laws  and  shape  its  own  in- 
stitutions. This  is  the  sacred  right  of  self-government,  l^o 
dead  hand  from  the  past  should  lay  its  paralysis  upon  the  liv- 
ing and  check  our  progress  and  leave  us  defenceless  against 
the  enemies  created  by  the  rapidly  changing  conditions  of 
modern  life. 

How  could  a  Federal  Constitution  of  110  years  ago  be  suit- 
able to  this  day,  when  each  State  has  so  often  had  to  change 
its  organic  law?  Not  withholding  any  meed  of  the  praise  be- 
stowed upon  our  Federal  Constitution,  it  must  be  remembered 
that  it  was  so  far  from  being  acceptable,  even  when  first  pre- 
scribed, that  many  States  ratified  with  the  understanding 
that  amendments  would  be  made,  and  suggested  amendments 
at  the  time  of  their  rati£cation.  Accordingly,  ten  amendments 
were  suggested  by  the  very  first  Congress  which  met,  that  of 
1789,  and  were  adopted  by  the  States. 

Another  defect  was  made  apparent  by  a  decision  of  the 
Federal  Supreme  Court  in  the  case  of  Chisholm  vs.  Georgia, 
and  the  eleventh  amendment  protecting  the  States  against  that 


62 

assumption  of  power,  by  the  court,  was  submitted  by  Con- 
gress in  1794,  and  promptly  ratified.  The  contested  presi- 
dential election  of  1801  showed  another  dangerous  defect  in 
the  organic  instrument  which  was  patched  up  (imperfectly, 
as  the  contested  election  of  1876  showed)  by  the  twelfth 
amendment  submitted  by  Congress  in  1803,  and  ratified  by 
the  States  within  nine  months  thereafter.  Three  other 
amendments  follov^  ed  in  the  wake  of  the  great  civil  war. 
How  far  it  would  have  been  possible  to  have  averted  the  vast 
loss  of  life  and  property,  and  the  resultant  taxation  since,  if 
the  original  Constitution  had  been  more  wisely  and  clearly 
drawn,  or  if  timely  and  proper  amendments  had  been  made, 
it  would  be  a  sad  and  a 

,    PROFITLESS  TASK  TO    CONSIDER  NOW. 

When  the  Federal  Constitution  of  1787  was  sent  forth,  it 
was  provided  for  a  people  of  3,000,000,  scattered  along  the 
Atlantic  slope. 

We  are  now  trying  to  make  it  do  duty  for  80,000.000,  set- 
tled from  ocean  to  ocean,  and  from  the  great  lakes  to  the 
gulf.  Then  our  population  was  mostly  rural,  for  three  years 
later,  in  1790,  we  had  but  five  towns  in  the  whole  country'- 
which  had  as  many  as  6,500  inhabitants  each,  and  only  two 
others  had  over  -IjOOO;  now  we  have  the  second  largest  city 
on  the  globe,  and  several  that  have  passed  the  half  million 
mark.  Then  we  had  seventy-five  postoffices,  with  §37,000 
annual  postoffice  expenditures.  Now  we  have  75,000  post- 
offices,  and  an  annual  postal  expenditure  of  $90,000,000. 

During  the  first  ten  years  the  expenditures  of  the  Federal 
government,  including  payments  on  the  revolutionary  debts, 
averaged  about  §10,000,000  annually.  In  the  last  few  years 
they  have  averaged  fifty  times  that.  When  the  Constitution 
was  adopted,  Virginia  was  easily  the  first  State  in  influence 
and  population,  having  one-fourth  the  population  of  the 
whole  country,   and  North  Carolina  was  third,  while  New 


63 

York,  which  then  stood  fifth,  now  has  double  the  population 
of  the  whole  Union  of  that  date,  and  many  other  States  have 
now  a  population  greater  than  the  original  Union,  whose  very 
names  were  then  unheard  of,  and  over  whose  bosoms  the  sav- 
age and  the  buffalo  roamed  unmolested. 

The  steamboats,  railroads,  gas,  electricity  (except  as  a  toy 
in  Franklin's  hands),  and  a  thousand  other  inventions  and  dis- 
coveries whioti  have  profoundly  modified  the  life  and  thought 
and  wants  of  the  people  and  governmental  requirements  and 
dangers  were  still  in  the  womb  of  the  future. 

CORPOEATIONS  WERE  THEN  SO  FEW 

that  not  till  four  years  later,  in  1791,  did  New  York  incorporate 
its  first  bank,  and  the  charter  for  the  second  bank  was  only 
obtained  by  the  subtility  of  Aaron  Burr,  who  concealed  the 
banking  privileges  in  an  act  incorporating  a  water  company. 
Not  to  particularize  further,  we  are  farther  from  those  times 
in  point  of  development  and  changes  than  those  days  from 
the  times  of  Elizabeth,  and  in  many  respects  even  more  dis- 
tant are  we  from  that  era  than  it  was  from  the  age  of  AVil- 
liam  or  Alfred.  Indeed  the  convention,  in  some  respects  (as 
shown  by  prompt  amendments),  did  not  correctly  express  the 
feelings  and  wants  of  its  own  day.  It  was  a  small  body, 
only  fifty-five  in  number,  of  whom  only  thirty-nine  concurred 
in  the  final  result.  They  had  no  benefit  from  the  public 
opinion  of  their  own  day,  but  sat  within  closed  doors.  Their 
work  was  barel}^  ratified  by  conventions  in  several  States, 
and  in  no  instance  received  the  imjyrimatur  of  the  people  of 
a  single  State. 

That  the  Constitution  was  as  good  as  it  was  is  a  marvel, 
and  it  has  been  eulogized  accordingly.  But  had  it  been  per- 
fect then — and  it  was  not — it  could  not  fail  in  the  wonderful 
development  of  more  than  half  a  century  to  be  in  many  re- 
spects inadequate  for  this  generation,  and    it   must    become 


64 

moie  and  more  so  as  the  years  pass.  It  cannot  be  long  be- 
fore vie  shall  ha\e  100,000,000,  and  even  that  is  small  to 
-what  is  just  beyond.     We  have  as  yet  only 

"  The  first  low  wash  of  waves 
"Where  soon  shall  roll  a  human  sea. " 

Alaska,  -vrhose  climate  forbids  hope  of  its  ever  becoming  a 
State,  and  the  expected  admissioQ  of  Hawaii,  vrhich  indicates 
a  colonial  policy,  are  features  unprovided  for  by  a  Constitu- 
tion which  contemplated  merely  a  Union  of  co-equal  States 
and  not  permanent  territories  or  colonies.  Time  and  your 
patience  would  fail  me  to  discuss  the  many  particulars  in 
which  the 

PRESENT  FEDERAL  CONSTITUTION 

needs  revision,  even  if  I  possessed  the  ability  and  authority 
to  indicate  all  its  shortcoir  ings,  wherein  the  ancient  garment 
should  be  let  out,  wherein  it  should  be  gathered  in,  what 
rents  should  sewn  up,  and  double  proofed  where  the  sword 
has  cut;  what  holes  and  tears  should  be  darned  which  the  ju- 
diciary have  made,  or  where  the  executive  or  Congress  has 
worn  the  garment  too  thin.  Sucb  matters  require  more  ela- 
boration and  most  careful  thought. 

I  shall  only  indicate  in  a  broad  way  the  inherent  defect 
which  was  in  the  original  instrument,  and  which  time  has  but 
accentuated.  In  the  first  place,  the  Constitution  of  the 
United  States  was  never  democratic.  The  experiment  of  self- 
government  was  then  new,  and  the  masses  were  not  educa- 
ted. The  schoolmaster  was  not  abroad  in  the  land.  The 
dominant  minds  in  that  convention,  almost  without  exception, 
feared  to  trust  the  people.  There  vvere  leaders  like  Hamil- 
ton, who  preferred  a  monarchy,  and  who  made  small  conceal- 
ment of  a  belief  that  "to  that  complexion  it  must  come  at 
last."  There  was  quiet  talk  of  calling  to  the  throne  the 
second  son  of    George  the  Third,  he  who  was  afterwards  the 


65 

infamous  Frederick,  Duke  of  York.  As  I  have  said,  that  no 
breath  of  public  opinion  might  blow  upon  the  convention,  the 
doors  were  hermetically  sealed — closed  in  the  faces  of  the 
people  upon  whose  welfare  they  were  assuming  to  act  as 
guardians. 

That  an  instrument  so  constructed,  and  by  such  men.  and 
for  people  averaging  so  far  in  point  of  education  below  the 
present  generation,  should  have  been  undemocratic  was  to 
have  been  expected.  That  it  has  remained  so  till  this  day  is 
the  unexpected.  The  preamble  itself:  "We,  the  people  of 
the  United  States,"  is  a  misrecital,  for  neither  the  Constitu- 
tion, nor  any  amendment  thereto,  has  ever  been  submitted  to 
the  people,  as  is  usual  with  changes  in  a  State  Constitution. 
Of  the  great  departments  of  government,  the  Executive,  the 
Judicial  and  the  Legislative,  the 

CONSTITUTION  GAVE  THE  PEOPLE 

only  a  voice  in  selecting  one-half  of  the  legislative.  And 
that  remains,  so  far  as  constituDional  forms  go,  to  this  day 
the  share  of  the  people  in  the  Federal  Government,  one-half 
of  one-third,  i.  e.,  one-sixth.  In  all  the  rest  the  people  were 
given  no  voice  whatever. 

The  executive  was  made  elective  by  electors,  and  it  was 
contemplated  that  those  electors  should  be  as  free  to  select 
the  president  as  the  members  of  the  State  legislatures  in  the 
selection  of  a  Federal  senator.  In  fact,  down  till  after  the 
memorable  contest  between  Adams,  Clay,  Crawford  and  Jack- 
son, in  1824,  in  the  majority  of  States,  the  presidential  elec- 
tors were  chosen  by  the  State  Legislatures,  and  they  were 
still  so  chosen  by  South  Carolina  till  after  the  late  war. 
Even  since  the  choice  of  electors  was  committed  to  the  peo- 
ple by  State  action,  the  constitutional  provision  still  gives  the 
electors  the  absolute  right  to  vote  irrespeccivb  of  the  will  of 
their  constituents,  and  that  electors  have  ordinarily  (though 
5 


66 

not  always)  obeyed  the  will  of  those  voting  for  them  is  a  tri- 
bute to  the  force  of  public  opinioD,  which  in  this  respect  has 
been  more  powerful  than  the  vJonstitution,  and  without 
forn  a]  amendment  has  reversed  the  mode  of  election  pre- 
scribed and  contemplated  by  that  instrument. 

The  Senate  is  still  not  elective  by  the  people.  In  many 
Stales  the  people  have  attempted  to  apply  to 

THE  ELECTION  OF  U.    S,    SENATOR 

the  same  method  which  has  captured  the  choice  of  the  execu- 
tive by  making  the  members  of  the  Legislature  quoad  hoc 
electors,  pledged  like  presidential  electors  to  vote  for  the 
nominee  named  by  a  popular  convention.  But  the  plan  has 
not  always  worked  satisfactorily  and  has  been  tried  in  onl}' 
some,  not  all,  the  States.  A  constitutional  amendment  to 
elect  the  senators  of  each  State  by  the  votes  of  its  people,  in- 
stead of  its  Legislature,  has  more  than  once  passed  the  lower 
house  of  Congress,  and  once  at  least  by  a  unanimous  vote, 
but  the  Senate  itself  has  always  defeated  this  measure  to  give 
the  people  more  power  in  their  government. 

In  this  day,  when  we  have  so  many  startling  instances  of 
the  power  of  vast  corporations  in  determining  the  choice  of 
senators,  and  the  scandal  and  expense  of  prolonged  sessions  of 
State  legislatures  taken  up  with  the  selection  of  a  senator — 
a  duty  which  the  people  could  discharge  more  satisfactorily 
and  without  any  expense,  by  electing  the  senator  on  the  same 
day  members  of  Congress  are  chosen- it  is  more  than  ever 
imperative  that  the  Constitution  should  be  revised  and  made 
democratic  in  the  mode  of  choosing  the  senators. 

Not  only  did  the  Constitution  bar  the  people  from  a  voice 
in  the  election  of  senators  and  president,  but  as  a  further 
check  it  placed  in  the  hands  of  the  executive  the  veto  power 
upon  any  action  of  the  representatives  chosen  by  the  people 
to  the  lower  house  if  by  any  chance  that  will  should  also  be 


67 


voiced  by  the  Senate.  The  veto  power  has  not  been  exercised 
by  the  monarchy  or  ministry  in  England  for 

NEARLY  TWO  CENTURIES. 

It  certainly  has  no  proper  place  in  a  republic  in  which  the 
will  of  the  people  duly  expressed,  in  an  orderly  and  pro- 
per manner,  by  their  chosen  representatives  should  be  the  law 
of  the  land  till  changed  in  the  same  mode.  The  veto  is  an 
anachronism,  and  is  in  fact  a  survival  from  times  when  the 
people's  representatives  could  not  legislate  without  the  assent 
of  the  monarch,  expressly  given  to  each  act.  Gold  win  Smith, 
in  his  "Political  History  of  the  United  States,"  correctly  de- 
scribes our  president  as  being  "an  elective  king,"  with  pow- 
ers very  far  surpassing  those  of  the  English  sovereign  and 
equalled  b}''  very  few  autocrats. 

But  by  far  the  most  dangerous,  the  most  undemocratic  and 
unrepubiican  feature  of  the  Constitution,  and  the  one  most 
subject  to  abuse,  is  the  mode  of  selecting  the  Federal  judges. 
They  are  not  only  selected  without  the  people  having  any 
voice  whatever  iji  the  choice  of  this  important  class  of  their 
servants,  but  they  are  selected  by  the  executive,  whom  by 
the  Constitution,  the  people  were  to  have  no  voice  in  choos- 
ing, and  are  subject  to  confirmation  by  that  branch  of 
Congress  in  whose  selection  the  people  still  have  no  voice. 
To  aggravate  the  matter  still  further,  these  servants  are  ap- 
pointed for  life,  and  mistakes,  or  bias,  or  private  influence 
exerted  in  their  selection  are  beyond  correction.  Our  gov- 
ernment is 

BASED  ON  PUBLIC  OPINION. 

A  "decent  regard  for  the  opinions  of  mankind"  was  averred 
in  the  great  Declaration  of  the  Fourth  of  July,  1776.  Pub- 
lic opinion,  when  formally  expressed  by  our  servants,  freely 
chosen  is  our  statute  law.  And  when  expressed  with  more 
formality  is  our  organic  la^ .     Yet  by  a  process  in  which  the 


68 

people  have  no  voice  we  place  in  position  those  vrho  look 
down  upon  and  revise,  and  negative  when  they  see  fit,  the 
actions  of  the  executive  and  the  legislature,  and  there  is  no 
check  upon  the  unlimited  and  wilful  exercise  of  this  power 
save  in  cases  of  corruption,  and  then  only  by  the  cumbersome 
and  impractical  method  of  impeachment. 

In  England  the  judges  can  be  removed  by  a  simple  address 
of  Parliament,  and  the  Constitutions  of  Massachusetts  and 
ISTew  Hampshire  have  the  same  provisions.  But  the  Federal 
judges  are  not  subject  to  any  restriction  from  that  public 
opinion,  which  is  the  corner-stone  of  a  republican  form  of 
government,  either  in  the  manner  of  their  selection  or  by  the 
power  of  removal  upon  an  address  of  the  legislature,  as  in 
England,  or  by  being  subject  to  review  as  by  holding  for  a 
term  of  years.  They  are  as  truly  beyond  the  will  of  the  peo- 
ple as  the  Czar  of  all  the  Russias.  That  under  such  a  sys- 
tem abuses  have  been  as  infrequent  as  they  have  been  (though 
they  are  not  unknown)  is  due  not  to  the  system,  but  to  the 
usaally  high  character  of  the  la\v}'ers  on  that  bench,  who, 
though  selected  by  a  vicious  method,  have,  been  ordinarily 
superior  to  the  temptations  within  their  reach. 

With  the  growing  power  of  corporations,  and  the  evils  at- 
tendant thereupon,  we  are  not  without  warnings  that  we  can 
not  trust  so  medieval  a  mode  of  selecting  juages  any  longer 
with  safety.  This  much  is  to  be  said  in  excuse  of  the  fra- 
mers  of  the  Federal  Constitution,  that  at  that  time  few  judges 
were  elected  by  the  people,  and  besides  the  vast  power  since 
developed  in  the  judiciary  of  setting  aside  and  annulling  le- 
gislative and  executive  action  was  unsuspected.  It  had  been 
asserted  in  one  or  two  cases  of  small  importance,  but  its  scope 
and  effect  were  not  discerned,  and  hence  its  abuse  tvas  not 
provided  against  in  the  Constitution.  The  duty  has  devolved 
upon  us. 

So  generally,  so  universally,  indeed,  has  the  evil  of 


69 


A  LIFE  JUDICIARY, 


selected  by  others  than  the  people,  and  without  supervision, 
been  seen  and  provided  against  in  the  several  States,  that  in 
forty-two  States  out  of  the  forty-five,  the  judges  now  hold 
for  a  fixed  term  of  years,  and  thus  their  conduct  comes  up 
periodically  for  review.  As  to  the  other  three  States — in 
Ehode  Island  the  judges  hold  only  from  year  to  year,  for  any 
judge  can  be  dropped  by  a  majority  vote  of  the  annual  legis- 
lature. In  Massachusetts  and  ISTew  Hampshire,  as  I  have 
stated,  the  judges  can  at  any  time  be  removed  by  the  execu- 
tive upon  an  address  voted  by  a  majority  in  the  legislature, 
so  that  in  every  jurisdiction  save  the  United  States,  the  con- 
duct of  the  judges  is  subject  to  supervision  and  disapproval. 

It  cannot  be  that  the  popular  sentiment  and  the  public  ne- 
cessity which  have  made  the  judges  elective  in  so  many  States 
do  not  obtain  as  the  United  States  judges.  The  Constitution, 
therefore,  should  not  only  be  made  democratic  as  to  the  elec- 
tion of  United  States  senators,  but  the  judges  should  be  also 
chosen  by  the  people,  and  for  a  term  of  years,  and  for  the 
same  reasons  that  the  people  of  the  States  have  made  their 
state  judges  elective.  The  same  reasons  that  apply  to  the  one 
apply  to  the  other  with  equal  force.  ISTo  State  which  has  once 
made  its  judges  elective,  has  gone  back  lo  the  appointive  sys- 
tem. A  proposition  of  that  kind  submitted  to  the  people  of 
ISTew  York  was  overwhelmingly  voted  down.  It  must  be  ad- 
mitted, under  our  theory  of  government,  that  the  people  aie 
the  best  judges  of  whom  they  should  have  for  their  public 
officials.  There  is  indeed  but  one  objection  \\  hich  can  be 
made  to  the  proposition  to  make  judges  elective  by  the  peo- 
ple, and  that  is  a  flat  denial  that  the  people  are  capable  of  select- 
ing the  best  servants,  and  the  assertion  that  some  one  else 
can  do  it  for  them  better  than  they  can  for  themselves. 

It  was  in  1820,  long  after  he  had  retired  from  the  heated 
theatre  of  action,  that  Mr.  Jefl'erson  made  his 


70 


CELEBBATED  DECLARATION 


that  the  Federal  judges  were  "a  corps  of  sappers  and  miners 
steadily  undermining  the  Constitution."  It  was  two  years 
later — in  1822 — that  he  wrote  his  letter  to  Mr.  Barry  in 
which  he  eApressed  his  view  that  the  Constitution  should  be 
amended  by  restricting  the  Federal  judges  to  terms  of  six 
years. 

When  the  Federal  judges  are  made  elective  by  the  people, 
the  United  States  district  judges  and  district  attorneys  can  be 
elected  by  the  people  of  their  districts,  as  State  district  judges 
and  district  attorneys  and  members  of  Congress  are  chosen; 
the  circuit  judges  by  the  people  of  their  circuits,  and  the  Su- 
preme Court  judges  by  the  people  of  the  States  composing 
their  respective  circuits  and  the  chief  justice  by  the  whole 
Union. 

That  the  public  sentircent  is  in  favor  of  this  reform  is  not 
only  evidenced  by  the  same  change  as  to  the  manner  of 
electing  State  judges,  but  is  common  observation.  As  long 
ago  as  1891,  a  distinguished  judge  and  law  w^riter,  and  the 
editor  of  a  leading  law  magazine  in  this  country,  a  gentleman 
■whom  we  have  the  pleasure  of  haviag  with  us  to-day,  wrote 
(25  Am.  Law  Kev.  288,  March,  1891),  "If  the  proposition 
to  make  the  Federal  judiciary  elective  instead  of  appointive 
is  once  seriously  discussed  before  the  people,  nothing  can  stay 

THE  GROWTH  OF  THAT  SENTIMENT, 

and  it  is  almost  certain  that  every  session  of  the  Federal  Su- 
preme Court  will  furnish  material  to  stimulate  that  growth." 
In  what  I  have  said  there  has  been  no  intention  to  reflect 
upon  the  Federal  judges,  either  singly  or  in  a  body,  but  the 
present  mode  of  their  selection  and  tenure  is  undemocratic 
and  medieval  and  capable  of  untold  abuse.  No  depository 
of  power  in  this  country  should  be  above  the  power  of  public 


71 

supervision  of  his  conduct.  It  is  time  this  matter  was  fully 
and  thoroughly  discussed,  and  the  reform  brought  about.  It 
is  no  injustice  to  the  public  servants  who  happen  to  occupy 
offices  which  may  be  affected,  to  agitate  for  a  reform  required 
by  the  public  interest. 

I  am  aware  that  every  Federal  Judge  below  the  Supreme 
Court,  though  nominally  holding  for  life,  can  be  abolished  by 
an  Act  of  Congress,  since  the  power  which  creates  a  Federal 
district  or  circuit  can  abolish  it  at  will.  If  it  can  abolish  one 
district,  it  can  abolish  all  at  once.  Several  districts  have 
from  time  to  time  been  abolished,  notably  two  in  1801,  /\.nd 
we  know  that  the  sixteen  circuit  judges  created  by  the  Judi- 
ciary Act  of  1801  were  abolished  eighteen  months  later. 

It  is  tru*i  that  under  the  stress  of  a  great  public  sentiment, 
every  U.  S.  district  and  circuit  judge  can  be  legislated  out  of 
office  by  a  simple  Act  of  Congress,  and  a  nev;  system  re- 
created with  new  judges,  but  that  would  be  a  strong  measure 
and  unlike  a  constitutional  amendment,  might  be  a  reflection 
upon  the  present  incumbents.  It  is  also  true,  as  has  been 
pointed  out  by  distinguished  lawyers,  that  while  the  Supreme 
Court  cannot  thus  be  abolished,  it  exercises  its  appellate  func- 
tioEs  "with  such  exceptions  and  under  such  regulations  as 
Congress  shall  make;'-  (Constitution,  Article  III,  Section  2), 
and  that  as  Congress  enacted  the  Judiciary  Act  of  1789,  it 
can  modify  or  repeal  it  at  will. 

In  1831,  the  attempt  was  made  to  repeal  the  twenty-iifth 
section  of  the  Judiciary  Act  of  1789,  by  virtue  of  which  writs 
of  error  lay  from  State  Supreme  Courts  in  certain  cases. 
Though  the  section  was  not  repealed,  the  repeal  was  support- 
ed and  voted  for  by  such  men  as  Henry  Clay  and  James  K. 
Folk,  names  which  have  not  yet  lost  their  music  in  your  ears. 

But  what  is  desired  is  not  the  exercise  of  any  such  powers 
by  Congress  which  it  undoubtedly  possesses,  and  in  an  emer- 
gency would  exercise,  but  a  constitutional  revision   by  which 


72 

the  Federal  judges,  like  other  public  servants,  should  be  cho- 
sen by  the  people. 

But  it  may  be  said  that  the  Federal  judges  are  now  in  office 
for  life,  and  it  would  be  unjust  to  dispossess  them.  So  it 
■was  with  the  State  judges  in  each  State  when  it  changed  from 
life  judges  to  judges  elected  by  the  people,  but  this  argument 
in  no  case  staj'ed  the  reform.  Indeed  all  the  Federal  judges 
except  the  Supreme  Court,  being  subject  to  be  abolished  at 
any  time  by  an  Act  of  Congress,  occupy  an  inferior  position 
in  this  respect  to  the  State  life  judges  who  could  only  be  abol- 
ished by  a  new  Constitution. 

It  will  be  a  great  reform  when  public  esteem  and  confidence 
shall  become  the  source  of  honors  instead  of 

COURT  FAVOR  AT  WASHINGTON. 

When  this  constitutional  amendment  is  made,  as  will  in- 
evitably be  done  at  no  distant  day,  it  would  be  well  to  avoid 
the  expense  and  conflict  of  the  douhle  judiciary  system  we 
now  have,  by  reducing  the  number  of  the  Federal  judiciary, 
and  amending  and  restricting  their  jurisdiction  to  the  excise,  in- 
ternal revenue,  postolfice,  admiralty,  customs  and  like  matters 
which  are  purely  Federal.  As  to  all  other  matters  in  which  a 
Federal  question  could  arise,  ample  protection  would  be  given 
b}''  writs  of  error — as  now — from  the  State  courts.  Certainly 
with  the  great  increase  of  intercommunication  and  the  decay 
of  local  prejudice,  a  large  mass  of  litgation  which  now  goes 
into  the  Federal  court  should  be  elimmated,  for  the  non-resi- 
dence of  a  party  should  cease  to  be  a  ground  of  taking  juris- 
diction from  the  State  courts.  To  a  large  extent  this  is  now 
simply  a  pretext  for  corporations  and  syndicates  to  escape  the 
jurisdiction  of  State  courts,  and  an  incentive  to  them  to  secure 
the  appointment  of  their  favorites,  whenever  they  can,  upon 
the  Federal  bench. 

ANOTHER  UNDEMOCRATIC  FEATURE 

of  the  Constitution  is  that  which  requires  all  Federal  officials 


73 

to  be  appointed  by  the  President  or  heads  of  departments. 
This  has  grown  to  be  a  great  evil.  When  for  instance  there 
were  seventy-five  postmasters,  it  was  contemplated  that  the 
President  or  Postmaster  General  would  really  appoint.  With 
75,000  postmasters  this  is  impossible.  As  a  practical  result, 
they  are  in  fact  selected  neither  by  the  President  nor  the 
Postmaster  General,  but  in  an  unconstitutional  mode  by  Sen- 
ators, members  of  Congress,  or  political  bosses. 

liot  so  long  since  we  saw  the  pressure  of  ofBce-seel^ers  upon 
Congressmen  used  dexterously  by  the  Executive  to  secure 
the  passage  by  Congress  of  an  act  \^  hich  otherwise  could  not 
have  been  adopted. 

A  REVISION  or  THE  CONSTITUTION 

should  at  least  empower  Congress  to  authorize  the  election  of 
postmasters  by  each  locality  whenever,  and  to  what  extent, 
it  may  deem  advisable. 

It  is  idle  to  say  that  we  have  grown  and  prospered  under 
this  Constitution.  It  would  be  as  logical  to  say  that  we  have 
done  so  in  spite  of  it.  The  Constitution  is  not  a  fetish  to  be 
■worshipped,  nor  did  it  come  down  from  heaven  a  perfect 
work.  It  had  to  be  patched  up  ere  it  was  in  working  order. 
Its  defects  nearly  brought  us  catastrophe  in  1801,  in  1820, 
and  again  in  1876.  That  which  happened  in  1861-65  we  all 
remember.  Those  features  of  the  Constitution  which  time 
has  approved,  and  which  are  still  suited  to  our  needs,  will  be 
retained.  Those  Avhich  are  otherwise  should  be  amended  or 
removed,  as  has  been  the  case  with  our  State  Constitutions. 
The  vast  power  of  the  President,  his  great  patronage,  giving 
him  power  to  make  war,  his  election  by  electors,  who  are 
under  no  legal  obligation  to  voice  the  sentiment  of  their  con- 
stituents, these  are  pregnant  with  future  trouble.  So  also  is 
the  election  of  U.  S.  Senators,  by  the  majority  of  a  caucus, 
i.  e.,  by  one-fourth  of  the  small  number  of  men  in  a  State 
legislature,    whose    nomination  and   election    can    be    easily 


74 

manipulated  by  the  money  power.  But  the  greatest  danger  is 
in  the  appointive  and  life  system  of  the  judges  who  dominate 
the  other  two  departments.  The  helmsmen  who  can  appoint 
at  will  the  course  of  the  ship  of  state  are  selected  without  any 
consultation  with  the  crew,  and  are  subject  to  no  control  by 
them.  The  Constitution  is  at  the  mercy  of  organized  and 
powerful  combinations  of  money,  and  it  is  imperative  that 
we  rescue  it  from  their  hands. 

In  a  condensed  w^ay  I  have  discussed  the  most  striking  con- 
stitutional features  needing  revision.  There  are  doubtless 
others.  The  revision  is  needed.  It  will  and  must  come.  It 
is  appropriate  that  the  bar  should  open  the  discussion.  After 
the  lapse  of  110  years,  constitutional  revision  cannot  be  pre- 
mature. In  view  of  the  dangers  which  now  face  us,  and  the 
certainty  of  greater  ones  if  we  delay,  it  is  time  that  the  mat- 
ter was  receiving  careful  and  patriotic  consideration. 

It  cannot  receive  other  treatment  at  the  hands  of  an  able 
non-partisan  and  patriotic  organization  such  as  that  which  I 
have  had  the  honor  to  address  on  this  occasion. 

Tennesseeans  and  brother  lawyers,  I  thank  you  for  your 
attention. 


San  Miguel  de  Guandape— Jamestown  Settled  81 
Years  Before  John  Smith. 


In  "Wake  Forest  Student"   (Magazine),  May,  1897. 


It  has  long  been  the  habit  of  historians  to  treat  the  coloni- 
zation at  Jamestown,  in  1607,  as  not  only  the  first  pernaanent 
settlement  in  the  United  States  north  of  St.  Augustine,  but 
as  the  first  tentative  settlement  except  the  three  ill-fated 
colonies  of  Sir  Walter  Raleigh  at  Roanoke  Island,  in  15S4-87, 
but  besides  the  permanent  settlement  of  the  Spaniards  at  Santa 
Fe,  in  what  is  now  New  Mexico,  in  1574,  and  the  abortive 
settlement  of  the  French  at  Arx  Carolina,  and  the  Spanish 
colony  at  Port  Royal,  in  South  Carolina,  there  was  another 
attempted  settlencent  of  the  Spaniards  on  the  very  site  of 
Jamestown  itself,  eighty-one  years  befor-^  John  Smith  ven- 
tured upon  that  historic  scene— indeed  years  before  his  adven- 
turous spirit  had  visited  this  m undane  sphere.  Com  paratively 
recent  discoveries  in  the  Royal  Library  at  Simancas,  in  Spain, 
established  the  fact,  though  it  was  unknown  to  Bancroft,  and 
indeed  only  one  historian  has  even  noted  it  in  any  manner 
whatever.  The  expedition,  too,  was  more  pretentious,  and 
far  better  supplied  with  men  and  material,  than  the  subsequent 
English  expedition,  whose  memory  is  inseparably  connected 
with  memories  of  Captain  John  Smith  and  Pocahontas. 

"As  early  as  1520,  Lucas  Vasquez  de  Ayllon,  one  of  the 
Auditors  of  the  Island  of  St.  Domingo,  though  possessed  of 
wealth,  honors  and  domestic  felicity,  aspired  to  the  glory  of 
discovering  some  new  land,  and  making  it  the  seat  of  a 
prosperous  colony."     This  was  the  year  that  Cortez  invaded 


76 

Mexico,  and  more  than  forty  years  before  Menendez  made  his 
settlement  at  St.  Augustine.  Having  procured  the  necessary 
authority,  D'Ayllon  despatched  a  caravel  in  1521,  under 
Francisco  Gordillo  to  explore  the  North  American  coast.  He 
fell  in  with  another  Spanish  caravel  under  Quexos,  Avhom  he 
persuaded  to  join  him,  and  they  finally  landed  at  a  point  on 
the  coast,  which  by  their  calculation  was  about  thirty-three 
degrees  and  thirty  minutes,  at  the  mouth  of  a  river  which 
was  possibly  the  Cape  Fear  river,  in  North  Carolina.  They 
sent  men  ashore  and  formally  took  possession  of  the  country 
in  the  name  of  the  King  of  Spain.  Though  strictly  enjoined 
to  open  friendly  relations  with  the  natives,  they  seized  some 
seventy  Indians  to  carry  off  to  sell  as  slaves,  and  made  no 
attempt  at  colonization.  On  their  return  the  act  was  con- 
demned by  a  commission  presided  over  by  Diego  Columbus, 
and  the  Indians  were  declared  free,  and  directed  to  be  con- 
veyed to  their  native  land.  D'Ayllon  proceeded  to  Spain 
with  Francisco — one  of  the  Indians — who  told  of  a  giant 
King  and  many  provinces,  and  on  June  12,  1523,  obtained  a 
Toysii  cedula,  giving  him  many  and  exclusive  privileges  for  the 
purpose  of  colonizing  the  country  and  converting  the  Indians — 
'  their  enslavement  being  expressly  prohibited.  He  sent  out 
two  caravels  to  the  new  continent  under  Pedro  de  Quexos, 
who  explored  the  coast  for  750  miles,  setting  up  at  various 
points  stones  to  commemorate  taking  possession  of  the 
country  in  the  name  of  Charles  V.  He  returned  to  Santo 
Domingo  in  July,  1525,  bringing  one  or  two  Indians  from 
each  province  to  act  as  interpreters  in  the  contemplated  ex- 
pedition of  colonization.  At  this  juncture  D'Ayllon  was 
hindered  by  the  law  suit  of  a  rival  who  sought  to  invalidate 
his  grant  from  the  King,  and  also  by  the  delay  in  the  arrival 
from  Spain  of  a  store  of  artillery  and  supplies. 

At  length  D'  Ayllon  set  sail  from  Puerto  de  la  Plata  with 
three  large  vessels  early  in  June,  1526.  As  missionaries  he 
took   the  famous   Dominican,  Antonio  de  Montesinos,   who 


77 

was  the  first  to  denounce  Indian  slavery  (some  years  prior  to 
Las  Casas),  and  with  him  Father  Antonio  de  Cervantes,  and 
Brother  Pedro  de  Estrada,  both  of  the  same  order.  The 
ships  carried  six  hundred  persons  of  both  sexes,  including 
physicians,  both  for  the  souls  and  bodies  of  the  colonists,  and 
100  horses.  The  expedition,  it  will  be  thus  seen,  was  far 
superior  both  in  numbers  and  supplies  to  the  English  expedi- 
tion, eighty-one  years  later,  which  contained  105  men,  of 
whom  we  are  told  "only  twelve  were  laborers,  and  very  few 
mechanics,  forty-eight  were  gentlemen,  and  four  carpenters. " 
D'Ayllon  reached  the  coast  at  the  mouth  of  the  river,  which 
he  named  the  Jordan,  and  which  is  supposed  to  have  been 
the  Wateree  in  South  Carolina.  Here  he  lost  one  of  his  ves- 
sels, but  built  a  smaller  vessel  to  supply  its  place — the  first 
ship  built  on  this  continent.  Francisco,  his  guide,  here  de- 
serted, and  the  reports  of  the  country  being  unfavorable, 
D'Ayllon  moved  along  up  the  coast.  At  the  entrance  of 
Chesapeake  Bay,  being  pleased  with  the  view,  he  entered  and 
proceeded  up  James  river.  He  selected  as  a  site  for  his 
colony  a  fair  peninsula  on  the  northern  bank  of  the  river, 
and  fifty  miles  from  its  mouth,  which  he  named  Guandape, 
and  on  which  Jamestown  was  afterwards  located.  On  its 
future  site  he  founded  a  settlement  which  he  christened  San 
Miguel  de  Guandape.  Here  he  found  only  a  few  scattered 
Indian  dwellings,  each  100  feet  long,  formed  of  pine  posts 
and  covered  with  thick  tops  of  piae  trees,  capable  of  housing 
large  numbers  of  Indians.  The  land  was  low  and  swampy, 
and  thfe  location  proved  to  be  malarial,  as  the  English  found 
to  be  the  case  nearly  a  century  later.  The  Spaniards  began 
work  in  good  earnest,  the  heaviest  labor  being  done  by  negro 
slaves,  the  first  ever  introduced  upon  this  continent,  which 
the  institution  v\as  destined  to  curse  till  near  three  and  a  half 
centuries  had  passed  away.  Winter  came  on  before  the  build- 
ings were  completed,  and  proved  to  be  unusually  severe. 
Some  men  were  frozen  to  death  on   board  the  vessels  lying  in 


78 

the  river,  but  before  that  the  malaria  of  the  ill-chosen  spot 
had  proaounced  itself,  and  many  colonists  sickened  and  died. 
D'Ayllon,  having  probably  exposed  himself  to  the  sun  and 
weather  freely,  to  encourage  his  men,  was  severely  attacked 
with  fever  and  died  on  the  18th  of  October,  1526.  He  left 
the  temporary  command  of  the  colony  to  Francis  Gomez,  till 
his  nephew,  John  Ramirez  should  arrive  from  Porto  Rico. 
Troublous  times  were  at  hand,  for  a  mutiny  sprang  up,  headed 
by  Gines  Doncel  and  Pedro  de  Bazan,  who  seized  the  con- 
stituted authorities,  including  the  temporary  Governor,  and 
placed  them  all  in  confinement  This  was  resented  by  a 
counter-plot  which  restored  them  after  a  civil  war,  and  Bazan 
was  tried  and  put  to  death. 

This  continent  was  destined  to  become  not  Spanish,  but  En- 
glish, not  Catholic,  but  Protestant.  The  Colony  which  had 
such  an  unfortunate  and  stormy  beginning  was  soon  abandoned. 
The  next  Spring  the  body  of  D'Ayllon  was  placed  on  a  ten- 
der, and  the  remnant  of  the  expedition  set  sail  from  San 
Miguel,  but  the  tender  foundered  at  sea,  and  the  ocean  rolls 
above  the  resting  place  of  the  restless  adventurer  whose  keel 
had  tracked  its  waters  in  a  vain  quest  for  fame,  wealth  and 
honors.  Of  the  600  souls  who  had  left  Santo  Domingo  with 
hearts  beating  high  with  hope,  150  dejected  and  fever-worn 
survivors  regained  that  island.  The  records  and  maps  of  the 
expedition  fully  demonstrate  that  D'Ayllon's  settlement  at 
San  Miguel  de  Guandapo  was  on  the  identical  spot  afterwards 
settled  by  the  English.  Ecija  the  P'doto  mayor  of  Florida, 
and  who  had  in  his  possession  these  early  charts,  was  sent  in 
1609  to  find  out  what  the  English  were  doing  at  Jamestown, 
and  he  reported  that  the  later  settlement  was  on  the  same 
spot  as   that  selected   by   D'Ayllon  for   his  colony   of  San 

Miguel.^ 

The  principal  material  for  the  history  of  the  expedition  is 

preserved  in  unpublished  manuscript  in  the  Royal  Library  at 

*  Ecija  Relacion  del  Viaje  June-Sept.  1609. 


79 

Simancas  in  Spain.  Indeed  the  details  are  fully  given  in  the 
legal  proceedings  which  resulted  from  as  the}'^  had  also  pre- 
ceded the  expedition.  For  what  little  is  known,  the  world 
is  largely  indebted  to  the  researches  of  one  conscientious  and 
accurate  delver  in  the  records  of  the  past.  But  it  fell  not  in 
the  scope  of  his  labors  to  explore  more  fully  the  history  of 
this  ill-starred  colony,  the  earliest  on  the  continent  North  of 
Mexico.  Doubtless  some  one  who  has  the  time,  learning  and 
patience  to  decipher  the  pages  of  the  long  forgotten  litiga- 
tion, will  yet  give  to  the  world  the  full  details  of  this  tragedy 
on  our  shores,  which  was  so  poignant  and  full  of  grief  to 
many  at  the  time,  but  which  has  now  been  brought  to  life 
again  only  after  the  waves  of  more  than  three  centuries  and  a 
half  of  oblivion  have  rolled  over  and  submersed  them. 

"There  were  brave  men  before  Agamemmon,"  and  we  now 
know  that  nearly  a  century  before  the  Englishman,  John 
Smith,  there  was  the  Spaniard  Lucas  Velasquez  D' Ay  lion, 
and  that  eighty-one  years  before  the  English  Colony  of  James- 
town on  the  same  spot  stood  the  Spanish  settlement  of  San 
Miguel  de  Guandape. 


THE  PROGRESS  OF  THE  LAW. 


The  American  Law  Review,  May- June,  1897. 


Motion  is  the  law  of  life.  E pur  si  muove,  "but  it  does 
move  though,"  indign?ntly  exclaimed  Galileo,  rising  from 
his  Knees  on  which  he  had  been  forced  by  the  holy  Incjuisition 
to  recant  his  declaration  that  the  world  rftvolved  on  its  axis. 
With  many  it  has  been  thought  that  the  law,  or  at  least  legal 
proceedings,  should  be  an  exception  to  this  universal  rule — 
move  on  or  perish. 

The  survival  of  so  many  legal  anachronisms,  and  the  occa- 
sional re-appearance  of  others,  after  so  many  statutes,  and  so 
many  decisions,  and  when  the  reason  for  there ,  and  a  know- 
ledge of  their  origin  even  has  passed  away,  .is  fitly  recalled  by 
the  fact  that  our  time-pieces  still  mark  the  fourth  hour  with 
IlII,  which,  we  are  told,  is  due  to  the  fact  that  the  King  of 
France,  to  whom  the  first  watch  w^as  carried,  unable  to  un- 
derstand its  mechanism,  criticised  the  IV,  and  ordered  it  to 
be  replaced  by  the  letters,  which,  wath  Chinese  exactness  of 
imitation,  are  used  by  us  to-day. 

This  is  paralleled  by  many  features  of  what  we  know  as  the 
common  law,  whose  origin  has  been  fictitiously  claimed  to  be 
"as  undiscoverable  as  the  sources  of  the  Nile.  "  The  sources 
of  the  Nile  have  now  long  since  been  discovered,  and  as  to 
the  common  law  we  know  that  its  real  origin  was  in  the  cus- 
toms of  our-  barbarous  and  semi-barbarous  'ancestors,  added 
to  by  the  decisions  of  judges  of  more  recent  centuries,  most 
of  whom  were  neither  wise  nor  learned  beyond  their  age. 
One  of  these,  in  haste  to  get  to   his  supper^  or  half  core  pre- 


81 

hendiiig  the  cause,  or  prejudiced,  it  may  be,  against  a  suitor,  or 
possibly  boczy  (and  such  have  been  kenned),  has  rendered  a 
decision,  another  judge,  too  indifferent  to  think  for  himself, 
or  oppressed  by  the  magic  of  a  precedent,  has  followed,  other 
judges  have  followed  each  other  in  turn,  and  thus  man}?-  in- 
different decisions  being  interwoven  with  a  greater  number 
of  sound  ones,  there  was  built  up,  pieue  by  piece,  precedent 
by  precedent,  that  fabric  of  law,  that  patch- work  of  many 
hands,  that  conception  of  divers  and  diverse  minds,  created  at 
different  times,  that  jumble  of  absurdities,  consistent  only  in 
inconsistency,  which  those  whc  throve  by  exploiting  its 
mysteries,  were  v^ont  to  style  "the  perfection  of  human  rea- 
son, the  Common  Lav;  of  England."  As  a  system  it  re- 
sembles Otv\ay's  Old  Woman,  whose  patched  gown  of  many 
colors  bespoke 

"variety  of  wketchedness." 

An  eminent  lawyer  thus  characterized  it:  "In  the  old  vol- 
umes of  the  common  law  we  find  knight  service,  value  and 
forfeiture  of  marriage,  and  ravishment  of  wards;  aids  to 
marry  lords'  daughters,  and  make  lords'  sons  knights.  We 
find  primer  seisins,  escuage  and  monstrans  of  right;  we  find 
feuds  and  subinfeudations,  linking  the  whole  community  to- 
gether in  one  graduated  chain  of  servile  dependence;  we  find 
all  the  strange  doctrines  of  tenures,  dov/n  to  the  abject  state 
of  villenage,  and  even  that  abject  condition  treated  as  a  fran- 
chise. We  find  estates  held  by  the  blowing  of  a  horn.  In 
short  we  find  a  jnmble  of  rude,  undigested  usages  and  maxims 
of  successive  hordes  of  semi-savages,  who,  from  time  to  time, 
invaded  and  prostrated  each  other.  The  first  of  whom  were 
pagans,  and  knew  nothing  of  divine  laws;  the  last  of  whom 
came  upon  English  soil  when  long  tyranny  and  cruel  ravages 
had  destroyed  every  vestige  of  ancient  science,  and  when  the 
Pandects,  from  whence  the  truest  light  has  been  shed  upon 
English  law,  lay  buried  in  the  earth.  When  Blackstone,  who 
6 


82 

had  a  professor's  chair  and  a  salary  for  praising  the  common 
law,  employs  his  elegant  style  to  whiten  sepulchres  and  var- 
nish such  incongruities,  it  is  like  the  Knight  of  La  Mancha 
extolling  the  beauty  and  graces  of  his  broad- backed  mistress, 
"winnowing  her  wheat  or  riding  her  ass.''  The  same  writer 
further  pertinently  asks,  ""When  is  it  that  w^e  shall  cease  to 
invoke  the  spirits  of  departed  fools?  When  is  it  that  in 
search  of  a  rule  for  our  conduct  we  shall  no  longer  be  bandied 
from  Coke  to  Croke,  from  l^lowden  to  the  Year  Books,  from 
thence  to  the  Dome-day  Books,  from  ignotum.  to  ignotius  in 
the  inverse  ratio  of  philosophy  and  reason;  still  at  the  end  of 
every  weary  excursion  arriving  at  some  barren  source  of 
pedantry  and  quibble?" 

To  adapt  this  incongruous  learning  to  the  development  of 
an  advancing  civilization,  recourse  was  had  to  the  Roman  or 
Civil  law,  a  system  known  as  Equity,  by  which  a  different 
kind  of  justice  was  administered  in  a  separate  court,  so  that 
the  spectacle  was  often  presented  of  a  suitor  recovering  in  the 
law  court,  being  restrained  from  availing  himself  of  the  judg- 
ment by  an  order  issuing  out  of  chancery,  cr  failing  in  the 
law  court  because  he  should  have  instituted  proceedings  in 
equity,  or  vice  versa.  Strange  as  it  may  now  seem,  there 
was  a  time  w^hen  many  eminent  la\^yers  held  to  this  absurd 
and  illogical  division  between  equity  and  law,  as  something 
fore-ordained  in  the  very  nature  of  things,  and  indispensable 
and  as  being,  in  some  indefinable  way,  connected  with  the  main- 
tenance of  our  liberties.  Yet  that  system  would  permit  a 
man  to  obtain  a  judgment,  as  a  sacred  right,  on  one  side  of 
Westminster  Hall,  when  on  the  opposite  side  of  the  great 
hall  of  William  Rufus,  another  court  would  be  sitting  which 
would  hold  him  an  unconscionablt;  rogue  if  he  offered  to 
enforce  his  judgment,  and  would  lay  him  by  the  heels  if  he 
attempted  to  do  so. 

Then  even  on  the  law  side  of  the  docket  remedies  were 
divided  into  divers  forms  of  action,  so  that  if  one  brought  an 


83 

action  of  trespass  when  he  should  bring  trespass  on  the  case, 
assumpsit  instead  of  covenant,  or  replevin  in  the  cepit  instead 
of  replevin  in  the  detinet,  he  lost  his  action.  And  yet  a  royal 
commission  in  England  reported  so  late  as  1831,  "there  is  at 
present  no  authentic  enumeration  of  all  the  forms  of  action." 
Indeed,  of  the  forms  most  commonly  in  use,  the  divisions  and 
purposes  were  much  in  controversy,  and  it  \\as  diiEcult  in 
very  many  cases  to  be  sure  that  you  had  your  client  properly 
in  court.  It  was  said  that  old  Judge  Cowen,  of  the  New 
York  Supreme  Court,  died  in  the  belief  that  we  had  "not  yet 
sounded  the  depths  of  trespass  on  the  case,"  and  the  great 
Judge  Story  was  possessed  of  the  belief  that  equity  could  re- 
form a  policy  of  insurance. 

It  is  only  about  fifty  years  since  the  movement  was  started 
which  in  England,  and  in  most  of  her  colonies,  and  in  the 
greater  part  of  the  United  States,  has  swept  away  the  distinc- 
tion between  law  and  equity,  and  between  the  forms  of  ac- 
tion, and  has  substituted  for  them  one  form  of  action  in 
which  the  plaintiff  shall  plainly  and  intelligibly,  without  un- 
due repetition,  state  his  ground  of  complaint,  and  the  de- 
fendant shall  reply  in  the  same  way,  so  that  the  case  shall  be 
tried  in  a  business-like  mode,  upon  its  merits.  Unfortunately 
the  reformed  procedure  had  to  be  intrusted  for  its  successful 
working  at  first  to  judges  and  lawyers  who  had  grown  up 
under  the  old  technicalities,  and  consciously  or  unconsciously 
they  endeavored  to  constitute  the  new  system  to  be  as  much 
like  the  old  one  as  possible.  It  was  the  old  case  of  putting 
"new  wine  into  old  bottles."  But  the  reform  has  made  its 
way,  and  the  generation  of  lawyers  now  on  the  stage  are 
astonished  at  the  attachment  of  theif  predecessors  to  a  system 
which  in  this  State  and  some  others  they  yielded  only  under 
the  stress  of  the  upheaval  following  in  the  wake  of  a  great 
war. 

The  substance  of  the  law,  no  less  than  the  forms  of  its  ad- 
ministration,   has   been  from   time  to   time  so  modified  and 


84 

modernized  by  statute  that  there  abides  the  faintest  per- 
ceptible relic  of  the  old  English  common  law.  Strange  to 
say  the  reform  in  England  has  been  complete,  and  the  new 
system  is  simpler  than  in  any  State  in  this  country.  Such  a 
thing  as  a  demurrer,  and  the  delay  incident  to  it,  is  now  un- 
known in  the  English  practice,  every  defense  being  taken  by 
answer,  and  legal  defects  in  the  complaint,  if  curable,  being 
eliiEinated  by  amendment  without  delaying  the  trial. 

Yet  such  is  the  force  of  habit,  that  in  some  of  the  less  pro- 
gressive la\^  schools,  until  very  recently,  intedigent  professors 
wasted  almost  the  entire  time  of  their  students  in  teaching 
them  the  absurd  farrago  ^vhich  used  to  be,  a  century  or  more 
ago,  the  law  in  a  foreign  countr}^  but  which  for  long  years 
has  not  been  the  law  there  or  anywhere  else  on  the  planet, 
under  the  delusion  that  because  our  grandfathers  had  learned 
law  in  that  fashion  we  should  still  so  teach  it.  At  the  same 
time,  no  learning  was  imparted  to  the  students  of  what  a 
young  lawyer  most  needs  know ,  the  law,  and  the  practice  of 
the  law  as  it  exists  to-day  in  the  student's  own  State. 

Happily  this  system  has  probably  been  abandoned  in  the 
last  of  the  schools,  and  a  modern  and  practical  education  is 
now  vouchsafed  to  the  young  student  everywhere. 


MALADMINISTRATION  OF  THE  POSTOFFICE 
DEPARTMENT. 


The  "Working  Staff  Is  Faithful  and  Honest — But  There  Are  Vast 
Defects  and  Criminal  Shortcomings,  Involving  the  Service  and 
Preventing  Improvement — The  Corporations  Responsible. 


Published  in  "Arena,"  May,  1897. 


"Go,  my  son,"  said  the  great  Chancellor  Oxenstierna  to 
his  son,  who  was  setting  out  on  the  grand  tour  of  Europe. 
"Go,  and  see  with  what  little  wisdom  the  kingdoms  of  the 
Morld  are  governed."  It  is  true  to-da}'^,  as  then,  and  of  re- 
publics no  less  than  monarchies.  We  need  not  take  time  to 
refer  to  Carnegie  and  the  iron-armor  matter,  as  to  which  the 
government  was  shown  to  have  paid  $520  per  ton  for  steel 
armor  which  the  same  establishmeat  was  furnishing  at  the 
same  time  to  the  Russian  government,  laid  down  in  Russia, 
at  $247  per  ton.  There  are  many  similar  incidents,  though 
smaller  perhaps  in  the  amount  of  the  frauds,  to  be  found  in 
other  departments  of  the  government.  The  object  of  this 
article,  ho»vever,  is  not  to  expose  frauds.  It  seems  an  endless 
and  a  bootless  undertaking — but  to  point  out  some  of  the 
maladministration  of  that  great  department  of  the  govern- 
ment which  comes  nearest  the  citizen  and  visits  him  more 
frequently  than  any  other,  the  tax  collector  not  excepted, 
and  whose  agents  constantly  go  in  and  out  among  us  and 
whose  tolls  are  a  daily  tax  upon  our  pockets — the  postoffice 
department. 


.86 

The  growth  of  this  department  is  more  phenomenal  than 
that  of  the  republic  itself.  Starting  with  seventy-five  post- 
masters, and  an  annual  expenditure  of  $37,000  under  Wash- 
ington, it  had  grown  in  1SS6  so  as  to  report  53,000  post- 
masters and  8tl:-i,000,000  of  expenditures,  and  this,  with  a 
constantly  decreasing  rate  of  charges,  which,  by  that  date, 
had  come  down  to  three  cents  for  the  carriage  of  one-half  oz. 
letters  anywhere  in  the  republic.  The  ten  years  since  1S86 
have  seen  postage  reduced  to  two  cents  for  one  ounce  letters, 
and  the  postoflSce  department  increased  to  near  75,000  post- 
masters and  $92,000,000  expenditures.  What  it  v^ill  be  even 
ten  years  hence  if  the  proposed  reduction  of  Jetter  postage  to 
one  cent  shall  be  made,  and  especially  if  telegraph  or  tele- 
phone offices  shall  be  established  by  the  government,  with  low 
rates,  at  every  postoffice  in  the  land,  in  town  and  country, 
no  man  can  estimate. 

In  the  main,  the  subordinates  of  the  postofBce  do  their 
work  efficiently  and  honestly.  There  is  no  department  or 
organization  working  a  large  force  of  men,  scattered  widely 
apart,  which  can  show  a  smaller  percentage  of  defalcations  or 
fewer  derelictions  in  duty.  There  is  no  complaint  of  thft 
working  staff,  of  the  vast  mass  of  men  who  do  the  drudgery 
and  the  labor  of  the  great  machine  which  is  so  material  to 
the  comfort  and  convenience  of  the  public.  If  there  had 
been  shortcomings  in  them  there  would  have  been  reform  long 
since.  Where  the  department  immediately  touches  the 
people  it  is  usually  regular  and  irreproachable.  Yet  there 
are  vast  defects,  criminal  shortcomings,  i\'hich,  stupendous  in 
amount  of  losses,  prevent  betterments  and  ameliorations  in 
the  service  rendered  the  public.  It  is  of  these  that  this  article 
wishes  to  treat. 

The  two  gravest  defects  in  the  administration  of  the  post- 
office  department  are  the  enormous  overcharges  paid  to  the 
railway  service,  amounting  to  fully  $15,000,000  annual  loss 
to  the  government,  and   the   prevention   by  corporate  infiu- 


87 

encesof  the  adoption  of  the  telegraph  and  telephone  as  a  post- 
oftice  betterment  and  facility,  although  they  have  been 
adopted  by  the  postoffice  department  in  ninety-five  per  cent, 
of  all  the  postoffices  in  the  other  civilized  governments  of  the 
world. 

And  firstly,  the  overcharges  paid  the  railways  for  mail 
service  are  such  as  to  stagger  belief.  According  to  the  post- 
master-general's reports  the  government  pays  eight  cents  per 
pound  for  the  transportation  of  mail  matter  in  addition  to 
paying  rental  for  the  postal  cars,  while  the  express  companies, 
which  make  large  profits,  are  charged  one  cent  per  pound 
and  less  for  the  same  service.  And  not  only  this,  but  while 
the  average  life  of  a  postal  car  is  twenty  years,  the  govern- 
ment pays  on  an  average  200  per  cent,  on  the  cost  of  a 
postal  car  as  yearly  rental  in  addition  to  paying  eight  times 
the  charge  per  pound  paid  by  express  companies  for  hauling 
the  car. 

To  get  down  to  details:  Jfostmaster  General  Bissell's  re- 
port for  189:1-,  p.  53,  and  Wilson's  for  1895,  p.  31,  show  that 
the  average  price  for  carrying  the  mail  was  eight  cents  per 
pound,  and  this  for  an  average  distance  of  41:8  miles.  The 
Texas  &  Southern  Pacific  railway  carries  caps,  boots,  cassi- 
meres  and  hardware  for  eight-tenths  of  a  cent  per  pound, 
from  ISTew  Orleans  to  San  Francisco,  2,500  miles,  five  times 
the  average  haul  of  the  mail  for  which  eight  cents  a  pound  is 
paid,  '/.  e.,  the  government  pays  fifty  times  as  much.  On  an 
investigation  before  the  interstate  commerce  commission, 
Geo.  R.  Blanchard  testified  tbat  the  express  companies  carried 
milk  to  l>lew  York,  a  distance  of  396  miles,  at  a  charge  of 
one-sixth  of  a  cent  per  pound,  returning  the  cans  free,  and 
that  the  distance  could  be  increased  to  1,000  miles  and  there 
would  still  be  a  profit  at  ooe-sixth  of  a  cent,  while  the  govern- 
ment pays  for  the  transportation  of  the  mails  over  the  same 
lines  eight  cents  for  an  average  of  4:48  miles,  besides  paying 
for  the  annual   rental   of  the  cars  largely  more  than  200  per 


cent,  on  their  cost.  Joseph  H.  Choate,  who  appeared  for 
the  railroads  at  the  same  investigation,  testilied  that  at  the 
rate  of  one-third  a  cent  per  pound  on  forty-quartcans  of  milk 
there  would  be  a  profit  of  two  to  three  hundred  per  cent.* 

The  amount  paid  the  railroads  for  the  rental  of  the  postal 
cars  is  $3,600,000  annually,  a  sum  more  than  enough  to  build 
outright  nearly  double  the  number  of  postal  cars  the  govern- 
ment has  in  use.  There  are  500  postal  cars  in  use,  costing 
.153,500  to  $4,0u0  each.  These  the  govermiient  could  build 
for  less  than  $2,000,000,  and  their  average  life  being  20  years, 
it  follows  that  at  the  present  rentals  of  $3,000,000  the  gov- 
ernment is  paying  §T2,():)0,000  lo\.  property  it  could  acquire 
for  §2,000,000.  On  the  Pennsylvania  raih^ay  the  govern- 
ment pays  annually  $7,327  per  car  for  the  rent  of  sixty-nine 
cars,  which  could  each  be  bought  outright  for  less  than  half 
the  money,  thus  over  200  per  cent,  is  paid  by  the  government 
as  rental  of  postal  cars  which  it  should  own.  On  the  New 
York  ('entral  the  government  does  worse  and  actually  pays 
$8,500  each  for  annual  rental  of  postal  cars  which  can  be 
bought  for  83,500  or  less,  nearly  250  per  cent,  interest.  In 
this  way  $3,600,000  a  year  are  spent  for  the  rentals,  whereas 
if  the  government  would  build  the  500  cars  at,  say  $3,500 
each,  a  full  estimate,  the  outlay  would  be  $1,750, ''00,  being 
less  than  half  the  annual  r«^ntal.  Three  per  cent,  interest  on 
this  sum  would  be  only  $52,500  per  annum.  The  life  of  a 
car  being  twenty  years,  the  annual  depreciation  would  be 
$87,500,  and  the  repairs  added  \;vould  not  make  the  entire  an- 
nual cost  exceed  ,|200,00(»  instead  of  the  present  $3,600,000. 

Besides  the  annual  $3,600,000  for  rental  of  postal  cars,  the 
sum  appropriated  to  railroads  for  hauling  the  mails  is 
$29,000,000,  an  amount  which  many  deem  full  $15,000,000 
in  excess  of  a  fair  and  moderate  charge.  Not  only  this,  but  it 
is  in  evidence  that  in  the  month  set  apart  for  the  quadrennial 
weighing  of  the  mails,  many  railroads,  if  not  all,  are  in  the 
habit  of  shipping  vast  numbers  of  sacks  of  congressional  mail 


89 

books  and  pamphlets  to  points  on  their  lines,  and  then  reship- 
ping  them  again  and  again  to  s\^  ell  the  gross  weight  on  which 
they  are  to  receive  pay  ior  the  next  four  years,  and  so  com- 
mon is  the  habit  that  when  soiie  were  caught  red-handed, 
the  excuse  of  their  officers  was,  "they  all  do  it,"  and  the  de- 
partment was  not  powerful  enough  to  secure  any  punishment 
meted  out  to  the  corfessed  offenders. 

So  well  known  are  these  abuses  that  when  Senator  Butler 
offered  an  amendment  to  the  postal  appropriation  bill,  that 
the  government  should  not  pay  for  the  annual  rental  of  any 
postal  car  more  than  ten  per  cent,  of  its  value  (double  pay, 
for  the  life  of  a  postal  car  is  twenty  years),  nor  more  for  the 
transportation  of  mails  than  express  companies  pay  per  pound 
for  like  services,  the  senators  did  not  dare  to  go  on  record 
upon  the  motion,  and  protected  themselves  by  refusing  an 
"aye  and  no"  vote  upon  it. 

In  the  discussion  in  the  Senate,  February,  1897,  Senator 
Yilas,  formerly  postmascer-geaeral,  concurred  in  the  substance 
of  the  above  statements,  and  the  necessity  of  great  reduc- 
tions. He  stated  the  rate  for  railway  mail  had  been  hurried- 
ly tacked  en  to  an  appropriation  bill  in  1873,  that  the  rate 
was  exorbitant  then,  and  though  railroad  charges  generally 
had  been  reduced  forty  per  cent.,  their  charges  to  the  gov- 
ernment, which  v^  ere  extravagant  even  in  1873,  had  not  been 
reduced  at  all.  Senator  Gorman,  who  has  never  been  sus- 
pected of  being  on  unfriendly  terms  with  great  corporations, 
made  the  following  frank  speech:  "I  do  not  impute  to  the 
men  who  are  in  the  postoffice  department  or  those  who  pre- 
ceded them  a  want  of  ability  or  courage  to  act;  but  the  fact 
is,  Mr.  President,  that  the  great  power  of  those  corporations 
who  control  everything,  who  are  powerful  enough  to  dictate 
policies  and  make  and  unmake  public  men,  is  so  omnipotent 
that  no  executive  officer  has  been  found  in  the  last  twelve 
years,  except  in  the  single  instance  and  to  the  extent  I  have 


90 

indicated,  who  has  attempted  to  reduce  the  compensation  for 
mail  transportation." 

Were  the  government  to  build  and  own  its  o'vn  postal  cars 
and  merely  pay  the  railroad  companies  for  hauling  them,  as 
the  millionaires  have  their  private  palace  cars  hauled,  over 
$15,000,000  a  year  would  be  readily  saved  out  of  the  present 
yearly  expenditures  of  the  postoffice.  With  this  done,  not 
only  would  there  be  no  annual  deficit  as  now,  and  not  only 
could  letter  postage  be  reduced  to  one  cent,  and  postal  cards 
to  one-half  cent,  but  even  the  postage  on  books  and  news 
papers  and  pamphlets  could  probably  be  somewhat  reduced. 
There  could  be  no  further  attempt  by  a  "Loud  bill"  to  stop 
the  circulation  of  free-silver  and  anti-monopoly  literature 
under  the  pretext  of  a  necessity  to  increase  postal  rates  to 
prevent  a  deficit.  The  way  to  prevent  a  deficit  is  for  the 
government  to  own  its  own  postal  cars  and  pay  the  railroads 
the  same  rates  only  for  hauling  them  that  others  pay. 

The  second  great  defect  in  the  postal  service  is  that  the 
swift  mail  service,  the  electric  mail,  is  illegally  turned  over 
to  private  companies  who  operate  it  at  "the  highest  figure  that 
trafiic  will  bear,"  and  furnish  offices  only  at  the  points  which 
will  pay  handsomely,  thus  giving  the  smallest  possible  benefit 
to  the  great  mass  of  the  people  and  the  largest  possible  profit 
to  the  multi-millionaires  who  have  confiscated  the  lightnino^  to 
their  sole  profit.  This  is  done  illegally,  as  the  Constitution 
places  the  postoffice  in  the  exclusive  control  of  Congress,  and 
no  one  bat  the  government  has  a  right  to  operate  this  best 
part  of  the  mail  service.  What  would  be  our  condition  if  the 
steam  mail  service  had  been  turned  over  to  private  companies 
as  the  electric  mail  has  been? 

In  practically  .every  country  except  the  United  States  and 
Canada,  the  telegraph  and  telephone  are  a  part  of  the  mail 
service.  The  average  rate  for  telegrams  in  Europe  is  ten 
cents  for  twenty  fvords,  and  the  average  cost  thirteen  cents 
each.     The   average  charge  for  telegrams  in  this  country  is 


91 

tbirty-one  cents  each.  Then,  too,  in  other  countries  the 
postofiBce  department  has  a  telegraph  and  telephone  at  nearly 
every  postofiQce  in  the  country  as  well  as  in  the  town.  It 
should  be  so  here.  It  w  ould  go  far  to  destroy  the  isolation 
of  farm  life,  and  v^ould  enable  those  living  in  the  country  to 
procure  the  services  of  physicians  in  less  than  half  the  time, 
and  with  less  expense  than  sending  a  messenger.  The  market 
prices  in  tocvn  would  be  known  daily,  and  whether  ir  would 
be  well  to  carry  in  produce  or  not.  Then  many  a  useless  trip 
to  the  railroad  station  for  freight  that  has  ^not  come,  or  to 
the  county  town  as  witness  in  a  cause  that  has  been  post- 
poned could  be  avoided.  Then,  too,  by  increasing  the  number 
of  postoffices,  most  of  the  advantages  of  country  free  de- 
livery could  be  had,  as  messages  requiring  dispatch  could  be 
telephoned. 

The  Western  Union  Telegraph  company  is  bonded  and 
capitalised  at  $120,000,000,  on  which  regular  dividends  of 
six  and  eight  per  cent,  are  paid,  besides  ^100,000  salary  to 
the  president  and  large  salaries  to  other  high  officials.  Yet 
the  stockholders  of  that  company  have  never  paid  into  its 
treasury  but  $440,000.  The  other  $119,560,000  (or  so  much 
of  it  as  is  not  water)  has  teen  created  by  exorbitant  rates. 
This  has  been  raked  out  of  the  public  by  high  rates  in  addi- 
tion to  the  annual  dividends  on  its  watered  stock,  high  sala- 
ries to  high  officials  and  lobbying  expenses  and  franks  to  pub- 
lic officials.  The  plant  of  the  Western  Union  is  estimated 
to  be  really  worth  $20,000,0:X),  so  an  eignt  per  cent,  divi- 
dend on  its  nominal  capital  of  six  times  that  amount}  is  in 
truth  forty -eight  per  cent.  A  tirra  in  N"ew  York  offered  the 
government  a  few  years  ago  to  put  up  a  thoroughly  equipped 
line  for  $35,000,000,  not  only  to  the  21,000  select  points  the 
Western  Union  now  operates,  but  to  each  of  the  75,000  post 
offices  throughout  the  Union. 

As  every  postmaster  could  use  the  telephone,  probably  that 
instrument  could  be  put  in  at  each  of  the  75,000  postoffices 


92 

in  addition  to  using  the  telegraph,  at  1 5,000  of  the  postoffices,  to 
forward  long  distance  messages.  With  the  vastly  increaBed 
number  of  messages  which  would  follow  loiv  rates  and  the 
extension  of  the  service  to  every  postolBcf^,  experts  express 
the  opinion  that  a  uniform  five-cent  rate  for  ten  words  bs- 
tween  any  two  points  in  the  Union  would  be  profitable 
to  the  government.  In  England,  when  the  telegraph  passed 
from  private  hands  to  the  government,  with  a  reduction  of 
rates  to  twelve  cents  for  twenty  words,  the  messages  prompt- 
ly increased  thirty-fold  in  number.  Other  countries  had  sim- 
ilar experience,  the  increase  in  the  number  of  social  messages 
being  simply  marvelous. 

Another  great  objection  to  the  present  system  is  that  while 
the  higher  officials  are,  like  the  higher  railroad  officials,  paid 
enormous  sums  wLich  they  cannot,  and  do  not,  earn,  the  vast 
mass  of  operatives  are  screwed  down  to  the  lowest  possible 
figure  and  are  in  constant  danger  of  losing  their  places.  This 
would  bo  otherwise  when  the  telegraph  and  telephone  are 
operated  under  the  postoffice  dejmrtraent.  The  high  officials 
would  not,  as  now,  all  speedily  become  millionaires,  and  the 
men  who  do  the  work  would  receive  reasonable  salaries,  and 
would  have,  like  other  postoffice  officials,  some  stability  of 
tenure. 

The  object  of  government  in  operating  the  telegraph  and 
telephone  service  will  not  be  to  extort  high  rates  to  pay  great 
salaries  and  dividends  on  a  six-fold  watered  stock,  but  to  ope- 
rate this  department  of  the  postal  service  as  it  does  the  others, 
upon  fair  salaries  to  men  and  officers,  at  as  near  cost  as  possi- 
ble —no  profits  will  be  desired.  Then,  too,  instead  of  restrict- 
ing itself  to  21,000  selected  points,  the  government  would 
utilize  the  75,000  postoffices  and  steadily  increase  their  num- 
ber. The  increased  business  would  greatly  increase  the  pay 
of  country  postmasters,  now  inadequate,  while  the  telephones 
and  telegraph  instruments,  being  placed  in  the  postolfices,  the 


93 

rents  now  paid  for  offices  by  the  private  companies,  would  be 
a  clear  saving  to  the  government. 

It  has  been  objected  by  the  Western  Union  lobbyists  that 
the  telegraph  and  telephone  systems  could,  then  be  controlled 
for  partisan  purposes.  But  we  know  that  the  postoffice  offi- 
cials in  ihe  last  campaign  were  not  s(»  controlled,  while  capi- 
talistic pressure  was  brought  to  bear  as  far  as  possible  upon 
nearly  e\  ery  telegraph  operator  who  could  be  reached.  There 
is  every  reason  to  believe  that  under  government  control  mes- 
sages would  be  more  sacred  than  under  the  present  system. 
As  to  telephones  for  private  use,  the  government  in  Switzer- 
land rents  theiE  at  $<d  per  annum,  and  even  in  Paragua}'",  the 
government  charges  only  $12  per  annum. 

But  it  ma}^  be  asked  why  the  government  has  not  been 
pressed  to  take  this  step  when  all  other  governments  have 
adopted  electricity  as  a  motive  power  in  their  postoffice  econ- 
omy. 

The  telegraph  in  this  country  originally  (1 844-4:7)  belonged 
to  the  postoffice,  and  when  from  mistaken  notions  of  economy 
Congress  permitted  it  to  go  into  private  hands,  Eenry  Clay, 
the  great  Whig  leader,  and  Cave  Johnson,  the  Democratic 
Postmaster  General,  earnestly  protested  and  prophetically 
foretold  the  evils  that  have  followed.  Repeated  attempts  to 
restore  these  betterments  to  the  postoffice  have  been  made, 
supported  by  leading  men  of  all  parties,  including  five  pobt- 
masters-general.  Xo  less  than  eighteen  congressional  com- 
mittees have  from  time  to  time  reported  upon  bills  restoring 
the  telegraph  to  the  postoffice;  of  these  sixteen  have  reported 
in  favor  of  it,  one  report  w  as  non-committal,  and  one  slightly 
adverse.  The  telegraph  monopoly,  vvhich  finds  its  revenue 
better  than  a  gold  mine,  has  always  fought  for  delay,  and 
by  its  powerful  lobby  at  Washington,  its  lavish  issue  of  franks 
to  congressmen  and  other  public  officials  and  its  influence  over 
the  daily  press,  to  which  it  furnishes  telegraphic  news,  has 
always  so  far   prevented  a  roll  call  on  the  measure.     They 


94 

will  continue  to  do  so  as  long  as  possible.  There  caa  be  no 
doubt  that  if  the  measure  could  come  to  a  vote  public  opinion 
would  force  a  result  in  the  interest  of  the  people. 

In  1868,  indeed,  the  Western  Union  was  virtually  whipped, 
and  promised  to  surrender  if  given  two  jesirs  to  ^^ind  up,  and 
the  act  was  passed,  which  is  till  on  the  statute  book,  that  all 
telegraph  lines  built  after  that  date  should  be  built  with  the 
notice  that  the  government  could  at  will  take  them  over  upon 
an  appraisement  of  the  value  of  the  plant — without  fr'anchise 
being  allowed  for.  But  by  the  njxt  Congress  the  Western 
Union  was  strong  enough  to  prevent  a  vote  and  has  been  so 
in  every  Congress  since. 

Boards  of  trade  in  Boston,  Xew  York,  Chicago  and  other 
leading  cities  have  petitioned  Congress  for  a  postal  telegraph. 
As  far  back  as  1870  the  Legislatures  of  Massachusetts,  x'Vla- 
bama  and  Nebraska  did  the  same,  and  the  Legislatures  of 
IS'evada  and  Nebraska  in  1873,  and  the  Legislatures  of  other 
States  have  followed  their  example. 

The  report  of  Postmaster-General  Wanamaker,  several 
years  since,  contained  a  list  of  official  bodies,  and  labor  and 
other  organizations  m  hich  had  asKed  Congress  for  this  great 
boon  and  betterment,  and  the  bare  list  copered  several  pages. 
But  the  people  have  so  far  aslced  in  vain.  The  Western  Union 
systematically  distributes  its  franks  to  every  Senator  and 
member  of  Congress  who  will  accept  them,  ana  to  every  in- 
fluential official  at  Washington,  and  elsewhere,  whom  it 
deems  advantageous  to  influence.  It  controls  the  daily  press 
largely,  through  its  dispensation  of  news;  it  has,  too,  the 
active  co-operation,  sympathy  and  support  of  the  money 
power,  especially  of  the  great  trusts,  a  system  of  which  it  is 
thn  pioneer,  and  it  constantly  maintains  a  powerful  lobby. 

Seeing  the  great  difficulty  in  getting  a  postal  telegraph  and 
telephone  bill  through  Congress,  owing  to  the  dilatory  and 
obstructive  tactics  of  the  Western  Union  lobby,  and  while 
waiting  the  passage  by  Congress  of  a  postoffice  telegraph  and 


95 

telephone  act  which  shall  ^ive  us  a  uniform  rate  of  five  cents 
between  any  two  points  in  the  Union,  each  State  whose  Legis- 
lature represents  the  people,  and  not  the  corporations,  should 
pass  an  act  providing  for  a  maximum  rate  for  telegrams  of  ten 
cents  for  ten  body  words  fur  a  message  between  any  two  points 
in  its  own  borders,  and  a  maximum  annual  rental  for  tele- 
phones of  $12  at  a  residence  and  $18  at  an  office  or  store. 

This  will  (1st)  give  the  people  immediate  relief,  as  the 
larger  part  of  telegraphing  is  done  within  state  limits,  and  it 
will  incidentally  cause  a  reduction  in  interstate  rates. 

(2nd).  By  accustoming  the  people  to  lower  rates  and  legis- 
lative control  of  telegraph  and  telephones,  it  will  hasten  pub- 
lic ownership, 

(3rd).  It  will  reduce  the  exorbitant  profits  and  salaries  of 
these  overgrown  corporations,  and  disable  theix  from  spend- 
ing so  much  money  io  lobbying  and  franks  to  prevent  post- 
office  ownership  of  telegraph  and  telephones. 

The  power  of  State  Legislatures  to  regulate  the  charges  of 
telegraphs  and  telephones  within  their  own  limits  is  well 
settled  by  the  decisions  of  the  United  States  Supreme  Court. 

If  the  postoffice  were  operated  in  the  public  interest,  postal 
savings  banks  and  a  parcel  post  would  also  long  since  have 
become  efficient  parts  of  our  postoffice  s_;Stem.  They  are  so 
operated  in  nearly  every  other  civilized  country,  to  the  profit 
of  the  goveroment,  and  thts  greatest  benefit  of  the  masses. 
There  being  no  risk  of  broken  savings  banks,  earnings  are 
more  generally  deposited,  and  the  parcels  post  largely  saves 
the  public  from  the  high  rates  of  our  express  system. 

We  miscall  this  a  government  "of  the  people,  by  the  people, 
and  for  the  people  "  A  consideration  of  the  above  defects 
in  our  postoffice  management  shows,  beyond  cavil  or  question, 
that  in  consideration  of  the  benefit  of  the  public  we  are  far 
behind  most  other  countries,  even  those  making  small  preten- 
sions to  popular  government.  Taking  our  postoffice  depart- 
ment as  a  sample,  it  could  be  said  that  ours  is  a  "government 


96 

of  the  corporations,  by  the  means  of  the  lobby,  and  for  the 
benefit  of  the  millionaires." 

As  was  said  by  the  inspired  prophet  of  old,  "The  ox  knoweth 
its  owner  and  the  ass  its  master^s  crib,  but  Israel  doth  not 
know,  this  people  do  not  consider."  "With  the  wealth  of  a 
continent,  entirely  the  creation  of  their  own  ha.nds,  they  per- 
mit a  few  thousand  men  to  confiscate  it  for  their  personal 
profit.  With  the  wonderful  discoveries  of  steam  and  electricity 
given  by  Providence  for  the  betterment  of  the  condition  of 
the  masses,  with  apathy  they  see  railroads  and  telegraph  and 
telephones  used  to  increase  the  wealth  of  millionaires  and  to 
bind  themselves  and  their  posterity  in  the  chains  of  hereditary 
serfdom,  and  standing  upon  the  shoulders  of  more  than  sixty 
centuries,  with  the  advantage  of  the  lessons  they  should^teach, 
without  effort,  almost  without  a  struggle,  they  see  the  "power 
of  the  purse"  pass  from  them,  and  know  not  that  without  it 
freedom  is  an  empty  form,  and  the  taskmasters  of  Goshen, 
their  certain  and  earlv  doom. 


TWELVE  REASONS  WHY  THE  TELEGRAPH 

SHOULD  BE  RESTORED  TO  THE 

FOSTOFFICE. 


In  "New  Time"  Magazine,  July,  1897. 


Among  the  many  reasons  why  the  telegraph  and  telephones 
should  be  owned  and  operated  exclusively  by  the  postoflBce 
department,  there  are  no  less  than  twelve  of  such  weight  that 
any  one  of  them  should  be  sufficient  to  cause  the  adoption  of 
that  measure  by  Congress. 

1.  The  Constitution  requires  it.  That  instrument  (Art.  1., 
Sec.  8),  places  the  establishment  of  postal  facilities  exclusively 
in  the  government.  Under  that  provision,  originally  the 
mail  was  carried  on  horseback;  then  by  stage  coach;  then 
with  the  advent  of  steam  it  was  carried  by  railroad  and  steam- 
boat. When  messages  began  to  be  sent  by  electricity,  the 
government  (18i4:-47),  therefore,  logically  adopted  and 
operated  the  telegraph.  When,  in  a  fit  of  economy,  it  was 
turned  over  to  private  corporations,  Henry  Clay,  the  great 
Whig  leader,  and  Cave  Johnson  the  Democratic  Postmaster- 
general,  earnestly  opposed  this  unconstitutional  action.  Lead- 
ing men  in  all  parties  since,  including  five  Postmasters-gen- 
erals, have  endeavored  to  restore  the  electric  mail  to  the  post- 
office,  but  the  powerful  telegraph  lobby  has  been  too  power- 
ful in  Congress  to  permit  a  vote  upon  the  question.  Yet,  out 
of  eighteen  committees  to  whom  successive  bills  for  govern- 
ment ownership  have  been  referred,  sixteen  have  reported  fa- 
vorably, one  was  non  committal,  and  only  one  was  adverse. 

2.  If  the  government  owned  the  electric  mail,  a  telegraph 

7 


98 

or  telephone  would  be  established  at  each  of  the  75,000  post- 
otfices,  aud,  indeed,  the  number  of  postoffices  would  be  greatly 
increased,  whereas  new  the  telegraph  goes  to  only  21,000 
selected  points,  for  the  private  conpanies,  operating  purely 
for  piofit,  naturally  seek  only  points  that  pay  well,  while  the 
object  of  the  government  would  be  to  serve  the  greatest  num- 
ber of  people,  the  whole  people,  if  possible,  and  at  bare  cost, 
no  profits  being  desired.  The  high  rates  and  restricted  num- 
ber of  offices  now  make  this  great  discovery  of  no  benefit  to 
the  great  mass  of  the  people. 

3.  The  government  desiring  only  to  earn  expenses  could 
give  a  uniform  low  rate  of  five  cents  between  any  two  points 
in  the  Union.     This  is  the  opinion  of  experts. 

4r.  The  government  could  operate  it  more  cheaply.  There 
would  be  no  enorncous  salaries  to  the  higher  officials,  nor 
would  great  sums  be  paid  out,  as  now,  to  maintain  a  lobby  at 
Washington,  and  at  each  State  capital,  and  to  retain  lawyers 
and  editors  to  influence  public  opinion.  Then  the  govern- 
ment could  save  the  rent  now  paid  by  the  companies,  as  it 
could  use  for  the  telegraph  and  telephones  the  same  buildings 
it  now  owns  or  rents  for  postoffice  purposes  at  each  point. 

5.  The  government,  while  not  paying,  as  the  private  com- 
panies do,  enormous  sums — from  $100,009  down— as  salaries 
to  the  higher  oiBcials,  would,  on  the  other  hand,  not  follow 
their  example  in  giving  starvation  wages  to  the  vast  army  of 
employees  who  do  the  real  work.  The  object  of  the  govern- 
ment not  being  to  earn  big  salaries  and  dividends  on  a  six- 
fold watered  stock,  it  could  and  tvould  pay  a  living  wage  to 
the  operators.  Besides,  the  increased  business  would  largely 
increase  the  pay  of  postmasters  at  country  postoffices. 

6.  The  operators  would  have  some  fixity  of  tenure,  being 
postir  asters,  and  hence  not  liable  to  be  turned  out  for  voting 
their  choice.  In  the  last  campaign  every  pressure  was 
brought  to  bear  upon  the  employees  of  the  great  corporations. 


99 

but  public  sentiment  would  not  ha.ve  permitted  the  postofBce 
oflRcials  to  apply  the  same  pressure  to  the  postmasters. 

7.  Messages  would  be,  like  the  mails,  more  secret.  Now 
the  business  of  every  man  is  at  the  mercy  of  the  heads  of 
private  corporations,  which  are  in  no  wise  subject  to  public 
opinion. 

8.  It  would  emancipate  the  press,  who  are  now  in  the 
power  cf  the  private  companies,  acd  must  tak'e  such  news  as 
they  send,  and  dare  not  be  free  in  discussing  certain  questions. 

9.  The  cheap  rates  would  enable  every  weekly  paper  to 
take  telegraphic  dispatches.  This  would  benefit  printer  and 
the  public  by  starting  new  papers,  and  extending  the  circu- 
lation of  old  ones.  In  England,  when  the  government  took 
over  the  telegraphs  and  adopted  cheap  rates,  the  number  of 
press  dispatches  instantly  increased  thirty  fold — not  thirty 
per  cent,  merely,  but  thirty  times  the  former  number. 

10.  All  other  countries,  practically,  except  Canada,  have 
the  telegraph  and  telephone  operated  by  the  government, 
and  at  low  rates,  and  in  all  it  has  been  a  success  for  the  govern- 
ment, and  a  vast  bt-nefit  to  the  public.  We  claim  to  be  a  busi- 
ness people,  but  we  are  guilty  of  turning  over  the  best  pay- 
ing part  of  the  postoffice — the  quick,  rapid  electric  mail — to 
private  corporations,  and  operate  the  slow,  non -paying  part, 
by  the  public  at  a  loss,  of  course. 

11.  The  government  placing  a  telephone  at  every  country 
postoffice,  and  increasing  the  number,  of  course,  would,  to  a 
large  extent,  amount  to  rural  delivery,  without  the  expense 
that  an  extension  of  the  present  city  delivery  to  country  districts 
would  be.  This  would  also  destro}^  the  isolation  which  is 
now  the  drawback  to  country  life,  by  putting  the  country 
districts  in  speaking  distance  of  the  town.  It  would  enable 
those  in  the  country  to  summon  a  doctor,  inquire  for  freight, 
ascertain  the  daily  state  of  the  markets,  and  to  communicate 
with  the  courthouse  tvhen  needed  as  witnesses,  or  on  other 
business. 


100 

1 2.  No  millionaires  would  be  created,  as  now,  out  of  the 
surplus  earnings,  but  the  money,  beyond  the  bare  cost  of 
operation  would  remain  in  the  pockets  of  the  people,  while 
at  the  same  time  these  facilities  would  be  extended  to  erery 
nook  and  corner  of  the  Republic,  and  become  a  convenience 
to  the  whole  people,  instead  of  being,  as  now,  a  mere  ad- 
vantage to  a  few,  which  is  very  often  to  the  detriment  of  the 
many. 


LETTER  TO  THE  RAILEOAD  COMMISSION  OF 
NORTH  CAROLINA. 


Railroads  Have  Taken  $13,000,000  Too  Much  from 
North  Carolina  In  Six  Years. 


Making  15  Per  Cent.  Net— Over  $2,000,000  Illegally  Carried 
Out  of  the  State  Yearly— The  Fares  Should  Be  Two  Cents— 
The  Freight  Rates  Charged  in  North  Carolina  Are  Also  Too 
High,  and  Railroad  Taxes  Are  Much  Too  Low. 


In  "News  and  Observer"  July  13,  1897. 


To  the  Honorable  The   Gentlemen  of  the  Railroad  Commis- 
sion : 

In  compliance  with  your  request,  I  respectfully  submit  some 
of  the  reasons  which  occur  to  me  why  you  should  accede  to 
the  public  demand,  already  granted  in  some  States,  for  a  sub- 
stantial reduction  of  passenger  and  freight  rates.  At  no  time 
in  the  last  six  years  have  numerous,  able  and  skillful  counsel 
been  lacking  to  represent  to  you  the  opposition  to  any  con- 
cession to  the  public  wishes.  I  wish,  therefore,  that  your 
invitation  lo  present  the  people's  side  cf  the  question  had 
been  extended  to  some  one  far  abler  than  I  to  express  the 
justice  of  that  demand,  and  with  power  to  persuade  you  to 
grant  it. 

The  right  of  the  public,  either  through  a  legislative  act  or 
by  means  of  a  commission,  to 


102 


REGULATE  AND  FIX  THE  RATES 


of  all  common  carriers,  and  especially  of  railroads,  has  always 
been  recognized  as  law.  Repeated  decisions  of  the  United 
States  Supreme  Court  have  of  late  years  re-afRrraed  this  law, 
and  so  conclusively  and  clearly,  as  to  be  beyond  chance  of 
recall. 

The  somersault  of  a  judge  of  that  court,  which  reversed 
the  precedents  of  100  years,  in  order  that  an  income  tax  of 
$60,000,000  might  be  transferred  from  the  rich  syndicates, 
corporations  and  millionaires,  to  the  backs  of  the  toiling  pro- 
ducers sent  a  thrill  of  indignation  through  the  country,  whose 
last  vibration  has  not  yet  been  felt.  But  a  decision  which 
should  attempt  to  change  the  immemorial  law  and  put  in  the 
hands  of  the  railroad  corporations  the  unrestricted  power  to 
fix  the  tolls  we  should  pay  on  the  internal  commerce  of  the 
country,  would  place  the  value  of  every  man's  land,  of  every 
man's  cotton,  or  other  produce,  at  the  mercy  of  these  cor- 
porations. 

To  turn  over  the  fixing  the  tariff  upon  our  foreign  com- 
merce, absolutely  and  without  disguise,  to  the  syndicates  and 
trusts  who  grow  rich  upon  it  is  not  a  circumstance  to  the 
effect  upon  the  public  welfare,  and  the  public  mind,  which 
would  follow  the  turning  over  this  tariff  on  our  internal  com- 
merce (which  is  many  hundred  times  greater  than  that  which 
comes  from  foreign  countries  through  our  custom  houses),  to 
be  fixed,  at  their  will,  by  those  who  are  to  receive  the  profits 
of  their  own  action.  If  the  millers  were  to  combine  to  fix 
the  tolls  of  their  mills  without  regulation  by  the  public,  it 
would  place  the  bread  of  the  people  at  their  mercy.  But  that 
combination  is  absolute!}'  nothing  to  the  power  (if  they 
possessed  it)  of  corporations  to  levy  at  will  their  own  rate  of 
toll  upon  every  pound  of  freight,  and  every  passenger  that  is 
moved  by  steam  in  this  land. 


103 

The  very  act  of  assembly  to  which  you  owe  your  existence 
expressly  confers  upon  jou  the  power  to  fix  rates  for  passen- 
gers and  freights,  and  for  telegraph  ana  telephone  messages. 
Unless  your  Commission  is  a  nullity  you  have  the  power,  and 
you  were 

CREATED  TO  EXEKCISE  IT. 

The  public  demand  for  a  reduction  of  railroad  charges  must 
have  been  strong  indeed,  which  in  spite  of  the  well-known 
influence  of  those  corporations  and  their  long  experience  in 
defeating  legislation  con  Id  force  through  the  act  which  created 
your  commission.  It  was  not  established  to  compliment  three 
gentlemen  with  office,  nor  to  add  to  our  taxation  an  expense 
of  some  $12,000,  annually,  but  the  Commission  was  created 
because  the  public  was  overwhelmingly  convinced  far  back — 
certainly  prior  to  1891 — that  the  railroad  charges  were  ex- 
cessive, and  oppressive,  and  that  relief  could  not  be  had  from 
the  voluntary  reduction  of  them  by  those  receiving  railroad 
incomes,  but  must  be  ordered  by  the  people,  in  right  of  their 
sovereign  power  to  fix  the  rates  of  common  carriers. 

The  only  restriction  upon  your  power  to  fix  rates  ever  sug- 
gested by  any  court,  is  that  the  rates  should  not  be  too  low  to 
afford  a  reasonable  interest  upon  the  actual  value  of  the  prop- 
erty. This  valuation  you  have  placed  at  $26,000,000,  upon 
all  the  railroads  in  this  State.  The  railroads  have  contended 
that  even  this  is  too  high. 

There  being  about  3,450  miles  of  railroad  in  this  State,  this 
is  an  average  of  about  $7,800  per  mile.  If  this  sum  in  cash, 
would  replace,  as  is  probable,  the  railroads  of  the  State,  then 
it  is  a  sufficiently  high  valuation.  You  have  said,  after  careful 
investigation,  I  presume,  that  it  is  the  actual  valuation  of  the 
railroads,  including  their  franchise.  Acts  1895,  chapter  119, 
section  45. 

The  q'lestion  then  is  what  is 


104 


A  REASONABLE  INTEREST 


upon  the  investment  of  $26,000,000.  Upon  so  large  an  in- 
vestment as  ttiat  three  per  cent,  is  a  good  interest,  for  govern- 
ment bonds  at  that  figure  are  at  par.  Or  take  the  North 
Carolina  value  of  money;  our  State  four  per  cent,  bonds  are 
at  par,  and  even  Raleigh  five  per  cent,  bonds  lately  sold  at 
$9  above  par.  Even  in  small  loans  to  individuals  bearing  six 
per  cent,  not  more  than  four  per  cent,  net,  after  paying  taxes, 
is  received  by  those  living  in  towns.  The  Supreme  Court  of 
the  United  States  in  the  late  case  of  Livingston  vs.  Sanford, 
164  U.  S.,  578,  say  that  rates  high  enough  to  earn  four  per 
cent,  net  will  not  be  disturbed  by  the  courts,  and  in  Dow  vs. 
Beidelraan,  125  U.  S.,  680,  the  same  court  says  that  rates 
high  enough  to  earn  1^  per  cent,  are  sufficient  when  the  pres- 
ent holders  have  bought  the  railroad,  or  its  stock,  below  par, 
as  is  the  case  w  ith  all  the  large  railroad  systems  in  this  State. 

You  have  fixed  the  railroad  valuation  at  §26,000,000,  but 
the  bonds  and  stocks  of  the  railroads  in  this  State  amount  to 
$94,000,000.  It  is  clear,  therefore,  that  rates  high  enough 
to  pay  interest  or  dividends  upon  the  latter  sum  are  grossly  in 
excess  of  what  is  just  to  the  public.  Freight  and  travel  are 
thus  being  taxed  to  pay  dividends  and  interest  on  nearly 
$70,000,000  of  fictitious   capital. 

There  are 

THREE  DIFFERENT  METHODS, 

each  of  which  will  denonstrate  that  the  present  rates  are 
grossly  excessive. 

1.  Take  the  three  great  railroad  systems  of  the  State,  which 
embrace  nearly  four-fifths  of  the  total  valuation.  Your  re- 
port for  1896  shows  as  follows: 


105 

Yaluation.    ISTet  Earnings.  Miles. 

Atlantic  Coast  Line,             16,852,000       $963,000  685 

Southern  E.  R.  System,        8,104,000      1,345,000  1,034 

Seaboard  E.  E.  System,        5,265,000         667,000  618 


,221,030    $2,975,000       2,307 

That  is  to  say,  property  invested  of  $20,000,000  (but  cost- 
ing present  owners  far  less),  is  allowed  rates  high  enough  to 
earn  nearly  $3,000,000,  net  or  fifteen  per  cent,  interest  an- 
nually out  of  the  people  of  North  Carolina.  Your  report  says 
the  property  is  worth  $20,000,000,  including  franchise.  Your 
report  says  the  net  earnings  are  nearly  $3,000,000,  and  even 
in  this  we  are  at  the  mercy  of  the  corporations.  There  has  not 
yet  been  a  cross  examination  or  inspection  of  their  books.  We 
do  not  know  whether  in  pro  rating  they  have  allowed  the 
North  Carolina  portion  of  their  roads  as  much  as  an  impartial 
calculation  nright  prove  to  be  just.  We  do  not  know  how 
much  the  net  earnings  would  swell  if  only  moderate  salaries 
■were  allowed,  and  improper  charges  disallowed,  and  the  Su- 
preme Court  of  the  United  States  say  in  Wellman  vs.  Rail- 
road, 143  U.  S.,  and  they  say  it  again  in  Eeagan  vs.  Trust 
Co.,  154  U.  S.,  at  page  412,  that  no  rates  will  be  held  loo 
low  until  the  salaries  are  shown  to  be  not  excessive,  or  that  im- 
proper charges  have  not  been  made,  and  that  the  rates  fixed  by 
the  public  authority  cannot  be  supervised  till  these  matters 
are  shown  up.  In  the  absence  of  any  examinations  by  your 
board  of  the  original  books,  it  is  proper  to  say  this  in  support 
of  a  suggestion  that  an  auditino;  of  the  books  might  show  that 
the  net  earnings  upon  calculation  by  impartial  accountants 
are  probably 

FAR  MORE  THAN  FIFTEEN   PER  CENT. 

The  railroad  returns  as  made  to  you  are  ex  parte,  and 
among  very  many  things   requiring  explanation  is  this:     In 


106 

1891,  the  gross  receipts  were  returned  by  the  railroads  at 
$8,551,000,  and  net  earnings  as  $3, 120,000.  In  1896  the 
gross  earnings  had  increased  nearly  $1,203,000,  but  in  some 
unaccountable  way  there  is  an  increase  of  operating  expenses 
of  over  $1,050,000,  or  in  other  words,  the  more  business  these 
corporations  do  the  larger  the  percentage  of  expenses,  which 
is  contrary  to  experience.  Besides,  we  know  that  improve- 
ments cheapening  the  cost  of  operation  ha\e  been  constantly 
made  in  the  railroad  world,  and  that  the  wages  of  the  men,  the 
rank  and  file,  have  been  rather  decreased  than  diminished. 
The  Inter-State  Commerce  Commission  report  a  sharp  reduc- 
tion as  to  the  pay  of  the  men,  and  an  increase  only  in  the 
salaries  allowed  by  the  higher  officials  to  themselves,  but  it 
would  take  a  great  deal  of  this  to  account  for  the  addition  of 
$1,050,000  to  operating  expenses  in  North  Carolina  in  five 
years  out  of  an  increased  business  of  less  than  $1,200,000. 

Then  the  North  Carolina  Kailroad,  223  miles  long,  reported 
its  pro  rata  contribution  to  salaries  of  "general  officers"  in 
1891,  $21,500;  the  same  item  in  1894  was  $24,089  (more  than 
the  total  salaries  paid  by  this  great  State  to  the  Governor  and 
all  the  heads  of  the  Executive  Departments  combined),  while 
in  1896,  after  public  criticism,  this  same  item  has  shrunk 
without  explanation  to  $5,875.  This  and  many  other  mat- 
ters which  seem  unaccountable,  may,  it  is  true,  be  explained. 

THEY  NEED  IT. 

As  I  have  said,  the  value  of  "the  investment"  of  these 
three  chief  lines  in  North  Carolina  is  reported  by  you  as  be- 
ing $20,000,000.  At  four  per  cent,  net  the  rates  should  be 
high  enough  to  allow  them  $800,000  net  earnings,  but  the 
actual  net  earnings  reported  upon  the  showing  of  these  three 
companies  for  1896  is  $2,975,000,  i.  e.,  they  carried  off  to 
their  non-resident  owners  the  sum  of  $2,175,000  in  excess  of 
the  fair  and  legitimate  rate  of  four  per  cent,  on  the  invest- 
ment.    The  excess  extorted  out  of  us  alone  is,  therefore,  far 


107 

more  than  double  the  entire  sura  we  pay  to  support  our  State 
government  and  public  schools,  and  this  illegal  excess  goes 
to  New  York  and  London  bankers. 

It  must  be  remembered  that  this  j^roposed  four  per  cent,  net 
is  above  charges  for  railroad  wrecks,  betterments,  repairs,  law 
expenses,  taxes,  high  salaries,  and  every  possible  charge  which 
the  corporations  have;  seen  fit  to'crowd  into  their  expenses, 
for  the  sum  total  of  the  money  received  by  these  three  lines 
for  their  operaiions  in  North  Carolina  in  1896  is  admitted  to 
by  i^S, 476.000. 

Thus  the  sum  in  excess  of  a  reasonable  allowance  of  four 
per  cent,  on  the  investment  which  these  three  systems  have 
carried  out  of  North  Carolina  since  the  day  your  Commission 
was  established  to  reduce  rates — the  excess  above  legal  rates 
in  these  six  years — has  been 

NEAR  THIRTEEN  MILLION  DOLLARS, 

exclusive  of  interest.  This  sum  under  the  decisions  of  the 
highest  court  in  this  land  could  justly  and  properly  have  been 
kept  here,  and  its  presence  to-day  would  make  this  State 
blossom  like  a  rose.  Talk  about  frightening  capital  from 
coming  into  the  State  by  "knowing  our  rights,  and  daring  to 
maintain  them."  What  we  need  is  to  keep  a  just  part  of  our 
own  capital  in  the  State,  and  not  to  permit  it  to  be  carried 
off,  to  be  used  by  Wall  street  and  London  bankers  to  wreck 
other  corporations  elsewhere;  to  bid  them  in  at  an  under 
price  and  thus  repeat  the  process  over  and  over  again. 

It  may  be  adroitly  urged  that  you  cannot  reduce  through 
rates.  True  enough,  but  you  can  protect  our  own  people  by 
reducing  fares  and  freights  between  any  two  points  in  this 
State,  so  that  the  gross  receipts  of  all  kinds,  through  and  local, 
shall  not  net  more  than  four  per  cent,  on  the  value  of  the 
money  invested.     Peik  vs.  Chicago,   94  U.  S.,  164. 

2.   But  there  is  another  proof  that 


108 


RATES  ARE  TOO  HIGH. 


The  value  of  money  began  increasing  with  the  demonetization 
of  silver  and  went  on  decreasing,  as  evidenced  by  the  fall  in 
the  prices  of  everything  else,  till  1891,  At  that  time  your 
Commission  was  established  to  reduce  railroad  rates.  It  is 
impossible  to  understand  the  tenor  of  the  debates  for  and 
against  the  measure  in  that  and  in  previous  Legislatures,  nor 
the  intense  struggle  by  the  railroad  lobby  and  the  railroad 
newspapers  against  it  upon  any  other  basis.  Indeed  the 
power  to  do  that  is  the  very  kernel  of  the  act  creating  the 
Commission. 

Whatever  change  your  Commission  felt  able  to  make  did 
not  amount  to  any  "cut,"  but  was  a  "  raise"  lor  comparing  the 
Kailroad  Commission  report  of  1S92  with  that  of  1891,  it 
appears  that  while  gross  earnings  had  increased  $80,000.  the 
net  earnings  had  increased  $83,000 — a  greater  profit  than 
before.  Had  rates  merely  remained  the  same,  an  increase  of 
$80,000  in  gross  earnings  would  have  shoM  n  830,000,  not 
$83,000  increase  in  net  earnings.  If  the  public  demand,  as 
evidenced  by  the  establishment  of  your  Commission,  could 
have  been  complied  with,  there  would  haye  been  a  sub- 
stantial cut  in  1891.  For  a  stronger  reason  there  should 
be  a  greater  one  now.  Since  the  repeal  of  the  purchasing 
clause  of  the  Sherman  Act  the  value  of  the  money  in  which 
we  pay  our  freights  and  fares  has  gone  on  increasing,  but 
railroad  charges 

HAVE  REMAINED  THE    SAME. 

Cotton,  which  for  the  six  years  ending  1891,  had  averaged 
eleven  cents,  in  the  six  years  since  has  averaged  barely 
seven;  a  fall  of  over  331-  per  cent.  The  railroad  rates  ought 
in  fairness  to  be  33  per  cent,  less  than  the  figure  to  which 
they  ought  to  have  been  cut  in  1891. 


109 

We  know  that  the  great  railroads  contributed  great  sums 
in  the  last  campaign  to  caaintain  the  gold  standard.  We  are 
now  paying  these  sums  back  by  high  rf  tes,  and  thus  paying 
them  to  increase  the  load  resting  upon  us.  A  commission 
established  by  our  people  ought,  it  is  respectfully  submitted, 
to  have  that  mercy  upon  us  which  we  cannot  expect  from 
the  non-resident  owners  of  these  corporations  who  knovi  no 
more  about  us  and  care  as  little,  as  the  English  landlords  do 
for  their  Irish  tenants,  or  their  Hindoo  subjects. 

One  of  these  great  systems  saw  the  justice  of  the  public 
demand  and  ihe  wisdom  from  a  business  standpoint,  of  recog- 
nizing the  enhanced  value  of  money  by  reducing  races.  Its 
owners  made  a  very  handsome  cut,  with  great  profit  to  them- 
selves and  to  the  gratification  of  their  patrons. 

WHY  THOSE  REDUCED  RATES 

were  stopped,  and  the  public  and  the  line  deprived  of  an 
arrangement  so  highly  satisfactory  to  both,  anH  by  what 
methods  it.was  done,  is  known  by  your  commission  already. 

3.  There  is  still  another  demonstration  that  rates  are  too 
high  as  to  passenger  rates.  The  rate  now,  as  in  1891,  is  still 
3^  cents  per  mile,  and  it  is  higher  than  that  on  some  of  our 
roads,  yet  the  railroads  report  the  average  received  per  passen- 
ger per  mile  two  and  one-fifth  cents.  Clearly,  therefore, 
there  is  a  vast  number  cf  people  who  riJe  either  absolutely 
free  or  at  less  than  the  general  public  pay.  The  Railroad 
Commission  act  contemplates  that  there  shall  be  no  discrimi- 
nation, and  could  there  be  worse  discrimination  thau  to  pile 
up  3^  cents  on  the  general  public  so  that  they  shall  pay 
enough  not  only  for  their  ov\n  riding,  but  for  reduced  rates 
and  free  rates  to  others. 

There  are  occasionally  excursions,  and  the  immense  crowds 
which  go  upon  them  show  the  demand  for  lower  rates.  If  a 
reasonable  permanent  rate  of  two  cents  per  mile  were  given 
all  the  time  it  would  save  the  public  great  inconvenience  from 


110 

overcrowding,  and  the  railroads  from  the  pressure  for  cars  on 
these  semi-occasional  fits  of  concession.  There  would  be  a  steady 
stream  of  travel  which  would  be  equally,  and  probably  more, 
remunerative  to  the  railroads  (as  has  been  the  experience  else- 
where), and  it  would  be  far  more  satisfactory  to  tbe  people, 
who,  after  all,  are  the  only  support  of  the  railroads. 

Then  the  system  of  granting  1,000  mile  tickets  at  two  cents, 
or  2^  cents  to  men  who  have  $1:0  or  $50  to  spare,  and  exact- 
ing 3:^  ceots  from  those  ^^ho  need  the  reduction  still  more  is 
only  less 

OBJECTrONABLE    THAN  FREE  PASSES, 

I  commend  to  your  consideration  the  following  extract  from 
the  report  of  the  Eailroad  Commissioner  of  Michigan:  "To 
sell  1,000  mile  tickets  at  a  less  rate  per  mile  than  that  for  a 
less  number  of  miles  is  a  gross  discrimination  between  passen- 
gers entitled  to  the  same  treatment.  It  violates  the  prin- 
ciples of  justice  the  same  as  if  100  car  loads  of  freight  could 
be  carried  at  a  less  rate  per  car  than  ten  car  loads  between 
the  same  points.''  The  doctrine  of  "equal  rights  to  all,  and 
special  privileges  to  none"  is  especially  applicable  to  the 
rights  of  the  public  o?er  a  common  carrier.  No  man  should 
be  charged  higher  for  the  same  accommodation  because  he  is 
poorer, 

I  do  not  advocate  a  two  cents  per  mile  rate  on  all  railroads, 
but  wherever  one  man  travels  at  two  cents  another  should 
not  be  charged  more  for  the  same  grade  of  accommodation. 
The  rate  shoald  be  graded,  as  in  many  States.  Those  whose 
gross  receipts  exceed  $4,000  per  mile  should  not  charge  more 
thao  two  cents  per  mile.  Those  whose  gross  receipts  are 
over  $3,000,  but  less  than  $4,000,  should  charge  not  over  2^ 
cents  per  mile,  and  all  others  not  over  three  cents.  The  sarce 
or  similar  reduction  and  grading  should  be  made  in  freight 
rates,  the  object  being  to  allow  a  fair,  just  per  centage  of  net 
profits  on  the  actual  value  of  the  "plant.'' 


Ill 

There  are  180,000  miles  of  railroad  in  the  United  States. 
They  have  been  built  with  great  difference  in  cost  and  through 
sections  differing  vastly  in  the  amount  of  travel  and  freight. 
Ingenious  tables  could  be  made,  which  by  skill  in  grouping, 
would  make  almost  any  given  rate  the  average.  There  are 
roads  charging 

LESS  THAN  ONE  CENT  PER  MILE, 

and  a  few  charging  as  high  as  the  highest  allowed  in  this 
State.  The  German  government  recently  sent  a  commission 
to  this  country  to  investigate  our  system.  With  German 
patience  and  plodding  thoroughness  as  to  detail,  they  reported 
that  upon  a  fair  average  two  cents  per  mile  was  the  average 
American  rate.  Lloyd  Brice,  in  an  article  written  in  the 
railroad  interest  in  the  North  American  Review  for  March, 
1897, also  says  that  the  average  American  rate  is  two  (2)  cents 
per  mile.  As  far  as  I  can  judge,  it  is  about  the  figure,  and 
considering  the  enhanced  value  of  money,  it  would  require  a 
larger  quantity  of  cotton,  corn,  or  labor  to  buy  a  passage  for 
100  miles  now  at  two  cents  per  mile,  than  would  a  few  years 
back  have  brought  a  passage  for  100  miles  at  3^  cents  per 
mile. 

I  hope  your  Commission  will  see  proper  to  grant  the  pub- 
lic this  concession,  which  is  so  eminently  just.  I  am  confi- 
dent that  the  railroads  would  make  more  money  as  well  as 
more  friends  b}'^  themselves  voluntarily  conceding  this  reduc- 
tion. These  agitations  for  two  (2)  cents  fares,  wherever  they 
have  been  begun  have  never  ceased  till  the  demand  has  been 
granted.  The  demand  is  so  just  and  reasonable  in  itself  that 
it  could  not  be  otherwise. 

I  have  preferred  the  above  methods,  which  demonstrate 
clearly  from  your  own  reports  that  the  rates  here  are  too 
high,  to  entering  into  a  comparison  with  rates  elsewhere, 
which  are  so  various  and  so  numerous  that  contention  could 


112 

easily  be  raised  on  this  collateral  question  by  railroad  advo- 
cates, anxious  to  divert  attention  from  the  real  issue.  That 
inter-State  rates  to  North  Carolina  are  higher  than  either  to 
Virginia  or  South  Carolina,  was  clearly  shown  by  two  late 
conventions  of  manufacturers  at  Greensboro  and  Charlotte, 
and  it  is  not  to  be  supposed  that  these  corporations  in  their 
local  rates  have  been  more  considerate  of  a  people  who  have 
been  so  forbearing  and  patient  under  corporation  imposition 
as  those  of  this  State  have  so  long  been.  But  my  own  in- 
vestigation has  been  thorough,  and  has  satisfied  me  that  the 
rail  re  ad  rates  in  this  State,  everything  considered,  are  the 
highest  on  the  continent. 

I  learn  that  the  answer  filed  by  the  Seaboard  Air  Line, 
when  it  was  contending  (against  an  injunction  brought  by  a 
rival  line)  for  the  privilege  of  reducing  their  rates,  set  out  this 
fact.  But,  however,  it  may  be  as  to  the  answer,  I  am  con- 
fident as  to  the  fact  that  our  rates  are  the  highest.  Wherever 
the  rates  elsewhere  approximate  ours  it  will  be  found  that 
they  are  in  those  States  where  the  railroads  have  almost  with- 
out disguise  taken  possession  of  the  government. 

It  is  true  that  some  States  have  more  people  than  this,  but 
they  have  more  railroads,  too.  Only  ttvleve  States  have  as 
many  people  per  mile  of  railroad  as  North  Carolina. 

The  reduction  of  transportation  charges 

IS    NO  SMALL  MATTER 

to  the  public.  The  railroad  freights  for  twelve  months  in 
the  United  States  amount  to  eight  hundred  millions  of  dollars. 
It  is  the  most  burdensome  tax  we  pay,  and  is  equal  to  four 
times  what  this  year's  cotton  crop  will  sell  for,  estimating  it 
at  ten  millions  of  bales  at  five  cents  per  pound.  Adding  the 
receipts  from  passengers,  carrying  mails,  and  other  sources 
the  people  of  this  country  annually  pay  the  railroads  five 
times  the  total  receipts  from  the  entire  cotton  crop  of  the 
country.     Each  family  in  the  U.  S.  pays  on  an  average  $60 


113 

a  year  for  freight  alone.  As  the  government  statistician, 
Commissioner  Wright,  estimate  the  average  income  of  each 
head  of  a  family  at  $500  per  annum,  each  family  works  one 
and  a  half  months  per  year  to  pay  the  freight.  There  is  no 
escaping  this  tax.  It  is  added  into  the  cost  of  every  yard  cf 
cloth,  every  pair  of  shoes,  every  pound  of  sugar,  coffee  or 
flour  that  is  bought,  and  is  deducted  from  the  price  of  every 
pound  of  cotton,  or  bushel  of  wheat,  oi  corn,  or  other  pro- 
duct sold.  A  reduction  of  this  internal  tariff  will  give  the 
greatest  relief.  If  all  freight  could  be  carried  as  cheaply  as 
wheat  is  carried  from  Duluth  to  Buffalo  this  burden  would  be 
cut  down  to  one-tenth  of  'what  it  is  now,  from  S800,000,000 
to  ^80,000,000,  a  saving  to  the  wealth  producers  of 
$720,000,000  per  year.  You  can  not  do  that,  but  you  can 
justly  reduce  freights  and  fares  in  North  Carolina  to  four  per 
cent,  net  on  what  you  yourselves  say  is  the  true  value  of  the 
railroad  property,  and  this  would  lift  from  the  backs  of  our 
people,  at  a  stroke  of  the  pen,  $2,300,000  per  annum,  which 
is  now  illegally  and  unjustly  extorted  out  of  them  for  the  use 
of  the  London  and  New  York  bankers  who  have  bought  up 
our  railroads  at  a  song. 

The  taxes  paid  by  the  railroads  here  are  admitted  by  that 
one  of  the  officials  of  the  lines  in  this  State  who  is  perhaps 
best  acquainted  with  the  subject  to  be  the  lowest  pa'd  by  rail- 
roads in  any  of  the  States.  The  property  tax  paid  by  them 
here  is  not  supplemented  by  any  tax  on  gross  earnings,  or 
stocks,  as  is  usual  elsefvhere. 

I  know  that  there  is  always  the  threat  that  we  will  drive 
capital  from  the  State.  That  was  threatened  if  the  six  per  cent, 
interest  law  was  passed,  but  to-day  North  Carolina  4's  are  at 
par,  and  Ealeigh  five  per  cent.'s  are  §9  above  par.  AVhat  we 
need  is  to  keep  our  own  capital  in  the  State,  and  with 
$13,000,000  saved  every  six  years,  as  above  shov\n,  could  be 
done,  we  can  build  railroads  and  get  us  a  good  school  system 
upon  our  own  money.     Foreign   capital    will  come  here,  not 


114 

because  we  are  humbly  respectful  and  submissive  to  the  own- 
ers of  it,  but  because  four  per  cent,  net  above  taxes  and  all 
other  charges  is  iroie  than  can  be  had  by  investing  in  United 
States  three  per  cents. 

In  conversation  recently  w  ith  a  director  on  one  of  these  lines, 
though  a  Xorth  Carolinian  himself,  he  said:  "The  truth  is,  this 
is  getting  to  be  an  old  country.  Our  laborers  must  come 
down  to  European  wages  and  our  farmers  must  live  cheaper 
and  be  content  with  European  small  profits.  They  cannot 
help  themselves."  That  is  the  way  in  which  the  banker- 
owners  of  our  railroads,  and  all  within  their  influence  look — 
with  perfect  complacency,  too — upon  the  situation.  But  if  it 
is  true  that  our  farmers  must  surelv  and  steadily  be 

TURNED    INTO  PEASANTRY 

and  tenant  holders,  and  our  laboreis  into  serai-serfs,  the  net 
reduction  should  be  all  round — top  as  well  as  bottom — and 
the  capitalists  who  have  8:^0,000,000  invested  in  our  three 
systems  should  take  two  per  cent,  net  profits — for  two  per 
cent,  per  year  is  the  bank  rate  in  London  and  Paris. 

But  I  take  it  the  railroad  owners  would  now  be  perfectly 
satisfied  x^ith  the  four  per  cent,  net  which  the  Vanderbilt 
roads  in  New  York  pa\'.  They  would  not  gruir  ble  at  that. 
What  ihey  strenuousl}'  object  to  is  getting  four  per  cent,  only 
on  tbeir  invest^nent.  They  would  be  satisfied  with  four  per 
cent,  on  the  §26,000,000,  but  they  v\ant  you  to  go  on  and 
allow  them  four  per  cent,  on  something  which  you  and  they 
both  say  does  not  exist.,  i.  e.,  their  property  in  these  roads 
above  $26,300,000.     There  is  the  sore  point. 

They  want  dividends  on  that  $26,u00,000,  which  they  say 
is  even  more  than  they  have  invested  here,  and  which  your 
Commission  says  is  every  cent  they  have  here,  and  then  they 
wish  to  tax  the  people  fares  and  freight  high  enough  to  pay 
four  per  cent,  on,  on,  on  up  to  894,000,000,  i.  e. ,  on 
$70,000,000,  for  which  they  have  not  paid  a  cent,  nor  struck 


115 

a  lick  of  work,  but  which  is  evidenced  simply  by  so  many 
pieces  of  paper  on  which  they  have  stamped  their  decree  that 
the  people  of  North  Carolina  are  mortgaged  to  pay  them  in- 
terest, and  it  is  their  decree  also  that  unlorn  generations  of 
North  Carolinians  must  come  in  the  world  to  pay  them  inter- 
est thereon.  One  generation  does  not  satisfy  their  greed, 
but  their  long  fingers  must  reach  down  into  the  pockets  of 
those  who  are  to  come  after  us.  We  neither  gave  nor  author- 
ized that  mortgage  and  we  will  not  be  bound  by  it. 

THEKE  IS   A   REASON,  ' 

personal  to  yourselves,  permit  me  to  say,  with  the  greatest 
respect,  why  you  ought  to  grant  a  reduction.  In  the  last 
Legislature  bills  to  reduce  fares  and  freights  were  defeated  by 
only  one  majority  in  each  house,  and  two  of  your  commission 
went  before  the  committees  against  the  bills.  It  is  reasonable 
to  suppose  on  that  narrow  margin  that  but  for  your  opposi- 
tion those  bills  would  have  passed.  It  was  understood  that 
you  opposed  them  because  you  thought  that  it  would  be  a  re- 
flection on  you  for  the  Legislature  itself  to  make  the  reduc- 
tion which  you  had  the  power  to  make.  It  is  certain  that 
members  A\ho  voted  against  these  bills  have  attempted  to 
justify  thpir  course  to  their  constituents  at  home  by  the  alle- 
gation that  they  expected  fully  that  you  would  yourselves 
make  the  reduction. 

If  ^26,000,000  will  replace  the  property  that  is  the  value 
of  the  plant,  and  an  enormous  addition  for  the  valuation  of 
franchise  can  only  be  niade  on  the  basis  that  the  excessive 
rates  and  proi:ts  make  the  property  worth  that  much  more 
than  it  could  be  built  for.  I  think  the  valuation  should  be 
placed  at  whatever  the  plant  is  really  and  truly  worth,  and 
that  fares  and  freights  should  be  reduced,  taking  the  previous 
years'  figures  as  a  basis,  so  that  four  per  cent,  on  that  valua- 
tion, above  taxes  and  all  expenses  of  every  kind  ^^ill  be  the 
net  earnino-s. 


116 

To  swell  the  valuation  by  an  estimate  of  $28,000,000  as 
one  of  your  number  has  jDroposed,  for  t'ie  value  of  the  fran- 
chise is  simply  an  admission  of  grossly  excessive  rates  of  fares 
and  freights.  It  would  merely  put  into  the  treasury  a  tax 
which  cannot  exceed  two-thirds  of  one  per  cent,  on  that  sum, 
while  letting  the  corporationii  put  their  fares  and  freights  high 
enough  to  earn  six,  ten  or  fifteen  per  cent,  on  this  ^28,000,000 
of  "wind."  If  the  treasury  prefers  it  as  a  method  of  taxa- 
tion, the  rates  might  be  fixed  to  yield  six  per  cent,  net  on 
$26,000,000  (above  property  tax  and  all  other  expenses)  and 
then  a  tax  could  be  laid  by  the  Legislature  on  the  gross  earn- 
ings sufficient  to  reduce  the  net  earnings  to  four  per  cent. 

THIS  IS    RESORTED  TO  IN    SOME  STATES. 

This  method  would  give  much  of  the  desired  reduction  of 
freights  and  fares  and  at  the  same  time  add  considerably  to 
the  tax  receipts.  In  Massachusetts  the  railroads  pay 
$3,680,000  taxes  in  addition  to  the  property  tax.  This  is 
about  nine  per  cent,  on  their  gross  earnings  Irom  passengers. 
In  Illinois  the  Central  Railroad  pays  the  State  seven  per  cent, 
on  gross  earnings.  In  many  other  States  a  similar  tax  is 
levied.  In  Indiana  the  railroads  pay  §2,250,000  tax,  and 
even  in  Pennsylvania,  \\hose  government  openly  belongs  to 
them,  they  pay  $3,500,000.  In  New  York  the  railroads,  in 
one  way  or  another  pay  over  $8,000,000  taxes  annuall}'.  VVis- 
consin,which  has  about  our  population,  collects  over  $1,200,^00 
taxes  from  railroads.  In  Minnesota  the  tax  on  railroad  gross 
earnings  is  $1,000,000,  and  the  railroads  in  the  little  State  of 
New  Jersey  pay  over  a  million  dollars  taxes.  In  North 
Carolina  all  the  railroads  combined  pay  the  State  a  little  over 
$100,000  on  their  $26,000,000  of  property,  and  not  one 
cent  on  their  nearlji  $10,000,000  cf  annual  gross  earnings, 
or  on  their  $3,285,000  of  net  earnings.  The  three  great 
railroads  of  the    State  earn    fifteen   per  cent,  usury    on  their 


117 

investment  and  pay  the  State  back  less  than  $100,000,  in 
taxes. 

But  should  your  Honorable  Commission  think  it  wise  to 
increase  the  valuation  for  taxation  by  some  millions  for  valu- 
ation of  the  franchise,  as  has  been  suggested,  I  earnestly  ask 
you, 

IN  JUSTICE  TO  THE  PUBLIC, 

not  to  overlook  the  fact  that  in  fixing  rates  they  should  not 
be  high  enough  to  give  the  railroads  four  or  six  per  cent,  net, 
on  the  franchise  valuation.  They  are  only  entitled  to  four  or 
six  per  cent,  (as  you  may  grant)  on  the  value  of  the  plant,  i. 
e.,  on  their  investment.  If  that  is  $26,000,000,  then  the  net 
earnings  should  be  calculated  to  be  earned  on  that.  The 
franchise  valuation  is  simply  the  ''wind,"  the  "water"  added 
by  reason  of  the  excessive  profits  and  this  "wind"  having 
cost  them  nothino;  to  allow  them  a  net  earning  on  that  would 
be  the  very  matter  against  which  our  people  have  most  earn- 
estly protested. 

Our  people,  have  no  hostility  to  railroads.  The  charge  is 
an  old  device  of  their  officials  whenever  justice  is  demanded 
in  regard  to  them.  There  is  hostility  against  the  methods  of 
some  of  their  managers  and  against  the  free  pass  system, 
which  in  many  instances  is  a  thin  veil  for  corruption ;  and 
ag?iDst  the  enormous  sums  in  excess  of  reasonable  net  earn- 
ings which  are  being  exacted  by  the  present  high  rates  and 
sent  out  of  the  State  never  to  return,  to  the  permanent  im- 
poverishment of  this  Commonwealth.  It  is  these  abuses,  not 
the  proper  uses,  of  railroads,  "which  are  repugnant  to  us. 

You  are  North  Carolinians  entrusted  with  a  great  and  sa- 
cred responsibility. 

TOU  HAVE  IT  IN  TOUR  POWER 

to  render  long  delayed  justice  to  a  long  suffering  people. 
You  can  lighten  the  load  which  a  blind  and  exacting  avarice 
has  bound  on  their  shoulders  and  makes  heavier  and  heavier 


118 

with  the  passing  years;  for  money  is  still  enhancing  in  value 
and  hence  the  rates  for  freight  and  passengers  are  increasing 
in  effect,  though  not  in  nominal  amount,  each  year,  and  al- 
most each  month. 

I  pra_y  you  grant  the  people  that  justice  and  that  relief  in 
the  contident  hope  of  which  your  commission  was  created. 
In  3''our  wisdom  you  have  thought  proper  to  d^fer  it  till  now. 
Six  years  is  a  long  time  for  a  ^^hole  people  co  suffer.  The 
facts  and  figures  I  have  laid  before  3''ou  are  taken  from  your 
own  reports.  They  tell  a  sad  tale  of  insatiable  avarice  on 
the  one  hand  and  of  patient  endurance  on  the  other. 

I  thank  you  for  the  compliment  of  asking  me  to  present 
the  cause  of  the  people  in  this  matter.  Nothing  is  nearer  to 
m}'^  heart  than  their  welfare.  Nothing  will  be  a  higher  honor 
than  to  be  able  to  secure  at  your  hands  some  alleviation  of 
the  burden  so  unsparingly  laid  upon  them.  I  would  that  I 
possessed  eloquence  that  I  might  present  their  cause  with  the 
force  its  justice  and  its  importance  demands. 

As  plainly  and  as  clearly  as  I  could,  in  my  humble  way,  I 
have  called  this  matter  to  your  attention.  In  the  name  of 
300,000  voters  in  North  Carolina,  I  ask  that  you  harken  to 
their  cause.  However  arrogant,  however  domineering,  how- 
ever omnipotent  in  our  government  the  railroad  kings  seem 
to  be,  the  real  sovereigns,  are  the  patient  burden-bearers,  the 
voters  of  the  State. 

They  have  been  very  patient,  they  have  been  patient  a  long 
time,  but  they  may  be  patient  no  longer.  Two  and  a  quarter 
millions  of  dollars  of  illegal  exactions  each  year  is  too  heavy 
a  burden  to  carry  much  longer,  and  our  history  tells  us  that 
when  these  toil-worn  and  sun-burned  men  of  North  Carolina 
have  been  moved  by  tyrannical  exactions  and  justice  too  long 
delayed,  they  know  how  to  assert  their  sovereignty. 

Into  your  hands  I  now  commit  their  prayer  for  relief. 
Most  respectfully, 

Walter  Clark. 


THE  ELECTION  OF  U.  S.  SENATORS  BY  THE 

PEOFLE. 


In  Indianapolis  Magazine,  July,  1897. 


In  1787  scarcely  a  State  elected  its  Governor  and  higher 
officials  by  popular  vote.  'Now  there  is  no  State  in  the  forty- 
five  which  elects  its  Governor  by  the  Legislature.  Why  should 
each  of  ihose  States  continue  to  elect  its  two  Senators  by  a 
method  it  has  condemned  as  to  the  election  of  its  Governor? 
The  interest  of  consolidated  wealth  in  the  election  of  Senators 
is  far  greater  than  ii  is  in  the  choice  of  Governors,  and  the 
corrective  of  popular  choice  is  therefore  more  needed. 

A  little  consideration  will  show  that  under  the  present  sys- 
tem it  is  possible  for  a  skilful  combination  (and  money  com- 
binaticns  are  always  skilful)  to  secure  the  United  States  Sena- 
tor in  each  of  the  close  States  if  it  can  obtain  control  of  one-six- 
teenth of  the  voters  or  even  less.  Let  us  see.  Take  a  close 
State  which  casts  400,000  votes.  A  majority  of  the  Legisla- 
ture is  elected  from  counties  having  200,000  votes,  or  less 
when  (as  is  often  the  case)  there  is  a  gerrymander.  A  ma- 
jority in  the  caucus,  which  controls  the  party's  choice,  is 
therefore  chosen  from  counties  having  100,000,  votes.  But 
nearly  half  of  these  were  of  the  opposite  political  party,  leav- 
ing the  majority  of  the  caucus  chosen  by  50,000  voters. 
These  members  wer'e  nominated  in  the  conventions  in  their 
respective  counties  by  a  majority  only  of  their  party,  i.  e., 
by  delegates  representing  say  25,000  voters  or  less,  which  is 
one-sixteenth  of  the  400,000  voters  of  the  State,  The  money 
combinations  to  whom  the  choice  of  Senatoi*S  is  all-important 


120 

have  money  and  skillful  manipulators.  They  pick  their  coun- 
ties. With  freepassestotheconventionsover  railroads  and  by 
other  methods,  it  is  easy  to  secure  the  requisite  delegates  in 
the  county  party  conventions,  who  represent  these  25,000 
voters,  and  thus  name  the  nominees  who  shall,  when  elected, 
constitute  a  majority  of  the  caucus  which  shall  name  the 
Senator.  The  counties  belonging  to  the  minority  party  are 
neglected  by  the  manipulator^j  as  also  are  the  counties  be- 
longing to  the  majority  party,  which  are  difficult  to  handle. 
Ttie  money  combination  wastes  no  money.  That  this  is  not 
a  fanciful  sketch  will  be  recalled  by  the  many  instances  in  di- 
vers States  in  which  the  caucus  nominee  of  the  money  power 
has  received  one  or  two  majorit}'^  in  the  caucus.  It  is  true 
this  great  disparity  could  happen  only  in  close  States,  but  it 
demonstrates  that  in  any  State  the  election  of  Senator  can  be 
controlled  by  a  small  but  skillful  minority  under  the  present 
system. 

There  is  another  objection  to  the  election  of  the  United 
States  Senators  by  the  Legislature,  in  that  the  voters  of  the 
dominant  party  residing  in  counties  in  which  the  party  is  in 
a  minority  are  utterly  without  influence  or  voice  in  the  selec- 
tion of  Senator,  whereas  in  the  election  of  Senator  by  popu- 
lar vote  every  voter,  irrespective  of  the  county  of  his  resi- 
dence, would  have  an  opporturity  to  express  his  wishes.  In 
such  an  election  the  United  States  Senator  must  be  the  ex- 
pressed choice  at  the  ballot  box  of  morr  voters  than  shall  cast 
their  ballots  for  any  other  man,  and  his  nomination  must  be 
Bcade  by  the  majority  in  the  nominating  convention  of  the 
successful  party  representing,  say  one-fourth  of  the  voters, 
subject  to  approval  by  a  majority  of  the  whole  people  at  the 
ballot  box.  By  this  method  of  election,  a  United  States 
Senator  must  be  the  choice  of  the  State  he  represents  as  fully 
as  the  Governor  is,-  In  the  present  mode  of  legislative  elec- 
tion, the  voice  of  his  own  party  is  stifled  and  unrepresented 
in  all  those  counfies  in  which,  being  in  the  minority,  it  shall 


121 

fail  to  elect  the  member  of  the  Legislature,  Then,  again,  the 
voters  of  the  counties  electing  members  of  the  Legislature  be- 
longing to  the  dominant  party  are  also  disfranchised  if  those 
members  do  not  belong  to  the  majority  faction  of  the  caucus. 

Another  very  serious  objection  to  the  legislative  mode  of 
choosing  Senators  is  the  frequent  "dead-locks,"  or  protracted 
contests,  which  take  up  a  large  part  of  the  time  which  should 
be  devoted  to  the  legitimate  dutj'  of  legislation.  The  ex- 
pense to  the  public  is  nc  small  item,  and  the  frequent  attend- 
ant scandals  are  not  edifying,  and  all  this  could  be  avoided 
by  choosing  United  States  Senator  the  same  day  and  by  the 
same  method  the  members  of  the  lowec  house  of  Congress  are 
chosen.  The  selection  of  members  of  the  Legislature  (>ften 
"with  an  eye  solely  to  their  preferences  for  Senator  and  in  to- 
tal disregard  of  their  fitness  for  legislation  or  views  on  public 
questions  or  their  personal  characters,  frequently  leads  to  se- 
rious inconvenience.  It  is  no  proper  part  of  a  legislator's 
functions  or  duties  to  be  an  elector  for  Senator,  and  the  t\^  o 
duties  should  not  be  combined.  Members  of  Congress  are 
not  constituted  electors  for  President.  Yet  they  might  be 
■with  as  much  appropriateness. 

The  present  mode  of  electing  Senators  does  not  give  any 
approximate  security  of  selecting  the  choice  of  the  State  as 
its  representative  to  the  Hall  of  Federal  Embassadors,  each 
cf  whom  should  be  able  to  speak  for  the  State,  and  not  as  the 
agent  of  the  corporations  doing  business  therein,  or  a  small 
manipulated  fraction  of  its  voters. 

The  change  to  election  by  the  people  would  greatly  lessen 
the  chances  for  corruption.  The  men  bers  of  the  party  con- 
vention of  the  State,  brought  together  directly  from  the  peo- 
ple and  so  soon  dispersed  again  amonc  them,  are  not  so  sub- 
ject to  the  subtle  arts  of  the  corporation  lobbyists  and  wire- 
pullers which  are  brought  to  bear  on  the  ra-ember  of  the  Legis- 
lature as  soon  as  his  nomination  is  probable  (if,  indeed,  they 
do  not  procure  his  nomination)  and  continued  till   after  the 


122 

election  of  Senator  is  over,  ^hen,  like  a  squeezed  lemon,  he 
is  thrown  aside.  Besides  the  party  convention  is  accessible 
to  public  opinion,  being  conscious  that  its  choice,  if  not  wise- 
ly made,  is  liable  to  rejection  at  the  polls.  ISTo  such  respon- 
sibility attaches  to  the  deliberations  of  a  legislative  caucus. 
A  mistake  there  made,  or  a  defiant  disregard  of  public  senti- 
ment, is  subject  to  no  ratification  by  the  people  and  is  with- 
out remedy  for  six  years.  There  can  be  a  further  check 
upon  delegates  to  State  party  conventions,  in  that  the  popular 
choice  for  Senator  can  be  indicated  by  a  primary  election. 

A  Senator  in  office  may  be  tempted  to  disregard  the  will 
of  his  State  if  he  knows  he  can,  by  use  of  public  patronage, 
or  other  means,  secure,  as  above  shown,  the  control  of  the 
one-sixteenth  of  the  voters  who  compose  a  majority  in  the 
nominating  conventions  of  those  counties  which  send  a  ma- 
jority of  the  legislators  of  the  aominant  party.  But  he  will 
pause,  when  he  knows  that  his  re- nomination  mast  command 
the  approval  of  a  raajorit}'  of  his  party  convention,  and  that 
its  action  in  turn  must  be  ratified  by  a  majority — or  at  least 
a  plurality  (if  there  are  more  than  two  parties)  of  the  voters 
of  the  entire  State  at  the  ballot  box. 

The  two  Senators  are  intended  to  represent  the  State. 
They  cannot  truly  do  so  unless  chosen  by  the  whole  State. 
At  present,  as  already  pointed  out,  large  sections  of  each 
State  are  absolutely  disfranchised  and  have  no  weight  what- 
ever in  the  choice  of  its  Senators,  because  not  sending  to  the 
Legislature  members  belonging  to  the  dominant  party. 

The  bill  to  modernize  the  choice  of  Senators  by  transfer- 
ring it  from  the  Legislature  to  the  people  of  each  State  has 
passed  the  lower  house  of  Congress  several  times,  and  once 
at  least  by  a  unanimous  vote  and  once  with  only  two  dissent- 
ing votes,  but  the  measure  has  heretofore  found  its  grave  in 
the  Senate  itself,  which  does  not  wish  to  go  on  record  on  the 
question.  The  Legislatures  in  at  least  fourteen  States  have  in- 
structed in  favor  of  the  measure,  Oregon,  California,  Idaho, 


123 

Iowa,  Wisconsin,  Indiana,  Kansas,  Kentucky,  Nebraska,  New 
York,  Louisiana,  South  Carolina,  West  Virginia,  and  Illinois, 
and  there  may  be  others  The  Constitutioo  of  Nebraska  re- 
quires that  the  choice  of  Senator  shall  be  submitted  to  the 
people  at  the  ballot  box  the  same  day  members  of  the  Legis- 
lature are  chosen,  but  this,  necessarily,  has  onl}'  a  moral  force 
which  would  certainly  be  disregarded  whenever  (as  is  not  un- 
usual) the  majority  in  the  State  on  the  popular  vote  should  be 
for  one  party  while  the  majority  elected  to  the  Legislature 
should  belong  to  the  opposite  party.  In  many  States,  the  U  nited 
States  Senator  is  nominated  by  the  State  party  ccmventions, 
and  the  nominees  of  that  party  for  the  Legislature  are  deemed 
pledged  to  vote  for  him,  according  to  the  similar  custom  now 
obtaming  as  to  electors  for  President.  There  are  also  many 
States  whose  statutes  provide  for  primary  elections  for  United 
States  Senator.  This  expedient  is  the  best  possible  under  the 
circumstances,  perhaps,  and  should  be  resorted  to  till  we  can 
amend  the  Constitution  by  frankly  giving  to  the  people  of 
each  State  the  right  to  choose  the  two  men  who  are  to  repre- 
sent their  State  in  the  Senate.  But  to  be  of  value,  the  pri- 
mary should  be  for  the  whole  State  and  not  merely  by  coun- 
ties. If  the  people  are  competent  to  choose  the  members  of 
the  lower  house  of  Congress  and  Gnvernors,  why  are  they  not 
competent  to  name  the  Senators? 


STLJF^F^LElVtElNtTr. 


THE  PHYSICAL  NAPOLEON. 


In  Godey's  Magazine,  February,  1897. 


The  many  current  articles  on  IS^apoleon  the  First  attract 
renewed  attention  to  the  great  Emperor.  He  has  been  viewed 
from  every  standpoint  except  an  unbiased  and  impartial  one. 
"Possibly  the  time  has  come  when  that  can  be  done.  Ills 
phenomenal  intellectual  capacity  is  admitted  on  all  hands. 
Small  attention  has  been  directed,  hov^ever,  to  his  physical 
development,  which  alone  enabled  him  to  bear  the  fatigues 
and  labors  necessary  to  sach  a  career.  Indeed  it  v\  as  no  less 
woQderfal  than  his  mental  characteristics.  He  had  "a  frame 
of  adamant"  as  well  as  "a  soul  of  fire."  His  labors  would 
have  worn  out  physically  half  a  dozen  ordinary  men.  He 
■was  insensible  to  heat  or  cold  or  fatigue. 

Attention  has  been  called  to  the  great  capacity  of  his  skull, 
but  another  physiological  fact,  which  probably  had  a  most 
important  bearing  on  his  success,  has  passed  almost  unnoted. 
His  normal  pulse,  or  heart  beat,  was  only  40  to  the  minute. 
Doubtless  this  had  a  direct  influ'^nce  in  enabling  him  to  stand 
fatigue  and  to  ihink  coolly  under  the  pressure  of  the  most 
trying  circumstances.  It  w^as  noted  that  he  rarely  perspired 
and,  toiling  along  Ubder  the  summer's  sun  through  the  desert 
in  the  Egyptian  campaign,  not  a  drop  of  perspiration  ^^as 
seen  on  his  brow.  Physiologists  may,  perhaps,  be  able  to 
determine  other  effects  upon  his  physical  and  mental  activity 


125 

from  this  abnormal  slowness  of  circulation.  His  chest  meas- 
urement was  as  phenomena]  as  that  of  his  skull.  Both  were 
extraordinary  for  a  man  of  his  height.  He  wore  a  No.  8  hat, 
and  his  scalp  was  so  tender  that  the  hat  had  to  be  always 
very  soft  and  padded.  By  the  way,  his  height  has  been 
stated  differently  at  5  feet  3  inches  and  5  feet  6  inches.  The 
truth  is,  both  are  correct,  for  5  feet  3  inches  old  French 
measurement  is  5  feet  G  inches  English  measurement.  A  for- 
getfulness  of  this  fact  has  caused  the  apparent  conflict  of 
statement. 

His  marvelous  good  health  was  an  indispensatle  factor  in 
his  success.  It  was  noted  by  his  teachers  at  school.  It  did 
not  fail  him  once  in  his  long  and  eventful  career,  till  the  close 
of  the  great  battle  of  Borodino,  under  the  walls  of  Moscow, 
in  1812,  when,  the  victory  being  w^on,  bis  Marshals  and  Gen- 
erals were  amazed  to  see  him  fail  to  crush  the  flying  enemy. 
The  Emperor  seemed  to  be  in  a  daze.  In  truth,  three  days  and 
nights  of  constant  watchfulness  had  for  the  first  time  over- 
come that  iron  frame,  and,  his  physical  man  failing,  the  em- 
pire of  the  world  was  then  and  there  wrenched  from  his 
grasp.  The  fatal  retreat  from  Russia  was  the  inevitable  conse- 
quence of  these  two  or  three  hours  of  inactivity  at  the  crisis 
and  acme  of  his  wonderful  career. 

The  next  failure  was  after  the  battle  of  Dresden,  in  1813, 
when  a  few  hours  of  indisposition  save  the  allied  army  and 
probably  cost  him  his  empire.  His  physical  deterioration 
lost  him  the  Waterloo  campaign.  His  mind  was  as  bright  as 
ever.  His  planning  was  never  better,  but  there  was  lack  of 
vigor  in  execution,  and  the  physical  man,  which  had  aided  in 
so  many  successes,  was  wanting  in  him. 


LETTERS  FROM  MEXICO. 


From  Fayetteville  "Observer." 

Jalapa,  17  de  Enero  de  1896. 

Major  E.  J.  Hale: 

Muy  8r  mio  y  distinguido  amigo  : 

After  travelling  through  the  northern  part  of  the  ''^United 
States  of  Mexico,''^  and  spending  several  da3^s  in  the  Federal 
capital,  I  went  down  to  Vera  Cruz  by  the  Mexican  railroad 
(coramonl}'^  known  as  the  ''Queen's  Own,-'  having  been  built 
with  British  money),  and  am  returning  by  the  Interoceanic. 
I  have  stopped  over  here  to  see  the  coffee  plantations,  or 
haciendas.  The  coffee,  as  you  know,  grows  on  trees  which 
bear  fruit  verj'^  much  resembling  cherries,  each  cherry  con- 
taining two  seed  which  are  the  coffee  grains.  The  business  is 
very  profitable,  as  raising  coffee  costs  about  nine  'cents  on  a 
silver  basis,  and  it  is  sold  in  San  Francisco  at  22|-  cents  in 
gold,  this,  owing  to  the  legislation  by  Avhich  in  the  United 
States  we  have  artificially  doubled  the  value  of  the  dollar,  is 
about  forty-one  cents  in  silver.  The  coffee  opens  continuously 
the  year  round,  and  the  coffee  tree,  like  all  others  here,  is  an 
evergreen. 

The  scenery  on  both  these  roaJs,  in  passirg  from  the  table 
lands  of  Central  Mexico  down  to  the  Tlerra  Caliente  or  tropi- 
cal low  lands  of  the  Gulf  coast,  is  grand  beyond  description. 
Above  the  little  village  of  Maltrata,  the  train  crawls  around 
the  side  of  an  almost  perpendicular  precipice  2,500  feet  above 
the  village,  into  which  we  could  almost  toss  a  biscuit,  and 
the  churches  and  house?  look  like  toy  houses,  and  the  people 
like   pigmies,    and   the   track,    by  many  a  devious   turn  and 


127 

twist,  passes  then  over  twelve  miles  before  we  get  down  to 
the  village.  Tate  the  scenery  along  these  two  railroads  as 
they  descend  and  I  have  seen  nothing  to  equal  it  in  the  High- 
lands of  Scotland,  in  the  Swiss  Alps,  or  in  California.  It  is 
worth  a  trip  here  to  see.  For  instance,  I  stopped  over  one 
afternoon  at  the  little  town  of  Orizaba,  half  way  dov\n  the 
mountains.  From  one  window  of  my  room  I  could  see  the 
grand  summit  of  Orizaba,  over  18,000  feet  high,  the  tallest 
peak  on  this  continent  (and  a,  full  half  mile  higher  than  Mont 
Blanc,  the  highest  point  in  Europe),  his  head  covered  with 
the  snows  that  ne^er  melt,  while  around  me  the  roses  were 
blooming,  and  the  strawberries  were  ripening  in  the  open  air, 
and  the  little  children  were  playing  barefooted  in  the  streets; 
and  far  to  the  lefc,  stretched  out  at  our  feet  the  vast  plain  of 
the  fertile  Tlerra  Caliente  where  the  sugar  cane  was  green, 
and  the  corn  tasseling,  and  the  mango  trees  and  the  bananas 
were  swaying  in  the  breeze  down  to  where  sixty  miles  awav 
could  he  seen  the  line  of  the  Gulf  and  the  white  houses  of 
Vera  Cruz,  and  the  big  ocean  steamers  resting  like  ducks  on 
the  waters, -and  seemingly,  even  in  this  clear  air,  no  larger. 
So  looked  Italy,  "with  her  fatal  gift  of  beauty,"  as  she 
lay  smiling  at  the  foot  of  her  mountains  when  Goth  and  Van- 
dal gazed  down  upon  her,  and  when  Hannibal  and  Napoleon 
poured  doivn  their  troops  from  the  Alpine  passes. 

It  is  strange  Americans  should  go  to  Europe  when  here 
close  at  hand  is  far  moye  magnificent  scenery.  Travel  offers 
more  novelty  here  in  every  way  than  in  the  beaten  pathways 
of  Germany,  and  Switzerland,  and  the  expense  is  not  one- 
third  as  much. 

Jalapa  is  one  of  the  oldest  and  quaintest  towns  in  the  Re- 
public, a  bit  of  the  sixteenth  century  clinging  to  the  side^  of  the 
mountain — nothing  modern  save  the  railroad,  the  electric 
lights  and  street  cars,  and  the  hotel  which  has  all  the  com- 
forts of  New  Tork.  But  once  inside  the  hotel,  you  will  find 
that  you  are  not  in  New  York,  for  there  is  not  a  chimney, 


128 

and  never  any  need  of  one,  and  the  house,  like  all  hotels  and 
private  residences  hereabouts,  is  built  around  an  open  court 
yard  where  the  fountain  plays  and  flowers  and  roses  are  bloom- 
ing. Jala  pa  has  a  medicinal  reminiscence  as  Jalap  came  from 
hence,  but  you  would  never  knov\  it  here,  for  the  people  call 
the'w  oMy  IIalap''per.  It  is  indeed  very  ancient.  When  Cor- 
tez,  376  years  ago  (a  full  hundred  years,  by  the  way,  before 
the  Pilgrims  landed  at  Plymouth  rock)  made  that  dare  devil 
march  with  400  men  to  take  the  City  of  Mexico  with  its 
quarter  of  a  million  of  people,  and  took  it,  he  passed  through 
Jalapa,  and  it  v/as  already  then  a  city.  The  two  principal 
churches  here  were  budt  by  the  Spaniards  long  before  Sir 
Walter  Kaleigh  made  the  first  attempt  at  an  English  settle- 
ment on  this  continent  at  Roanoke  Island.  And  forty-nine 
years  ago  Jalapa  saw  another  army  come  up  from  the  sea- 
ward, from  the  white  walls,  dimly  discerned,  where  nestles 
Vera  Cruz  hy  the  deep  waters.  And  the  bugles  rang  out  full 
and  free,  and  the  drums  rolled,  and  the  long  blue  lines  came 
marching  through,  and  in  their  ranks  but  unnoted  then  were 
young  captains  and  lieutenants,  Robert  E.  Lee,  and  U.  S. 
Grant,  and  Stonewall  Jackson,  and  McClellan,  and  Thoncas, 
and  Longstreet,  and  many  another  whose  names  have  passed 
into  history  now  and  are 

"  written  high 
"  On  the  dusty  roll  the  ages  keep." 

They  had  first  met  the  enemy  and  driven  him  back  at  the 
National  Bridge,  which  we  passed  a  station  or  two  back,  and 
then  at  Cerro  Gordo  {angUce  "round  hili'')  the  conical  top 
mountain  which  lifts  its  head  out  yonder.  Sharing  the  same 
fare,  following  the  same  leaders,  drinkiugfrom  the  same  can- 
teen, they  passed  by  the  door  of  this  hotel,  up  the  street  yon- 
der, througn  the  pass  that  opens  beyond,  up  the  mountain, 
on  and  on,  ever  on  and  upwards  till  now  they  live  amid  the 
stars.     And  down  this  same  street  rode  since  at  the  head  of  a 


129 

retreating  army,  with  the  triccloi:  floating  over  him,  and  the 
imperial  eagles  of  a  Napoleon  borne  before  him,  a  Marshal  of 
France  \^ho  left  a  reputation  behind  hira  to  find  the  infamy 
of  an  Arnold  on  the  green  and  golden  slopes  of  Lorraine — 
Bazaine — the  only  man  in  all  history  v^  ho  has  surrendered  an 
army  of  175,000  fightino;  men.  And  so  Jalapa  with  her 
bright  sunshine,  and  her  narrow  streets  and  her  pretty  women 
and  laughing  children  and  bubbling  fountains,  has  seen  history 
pass  by  her,  and  she  remains  unmoved  and  unchangino*  as 
Orizaba,  which  stands  out  yonder  the  monarch  of  this  repub- 
lican continent,  with  his  slumbering  fires  beneath  and  his  un- 
melting  snows  above,  the  sentinel  of  the  ages,  unchanged, 
■while  generations  of  men  and  empires  pass  by  and  disappear 
like  fleecy  clouds  noelting  into  the  infinite  azure  of  the  past. 
I  have  met  and  talked  with  all  classes  of  men,  from  the 
President  and  the  Chief  Justice  of  the  republic,  to  the  peon 
as  he  mends  the  roadway  or  follows  his  plow,  and  I  have 
seen,  too,  countless  numbers  of  our  own  countrymen  who  are 
here  on  business,  or  as  tourists,  and  they  are  coming  in 
steadily  increasing  numbers,  attracted  by  the  great  and  grow- 
ing prosperity  here,  and  repelled  by  the  distress  in  our  coun- 
try produced  by  the  financial  legislation  of  a  government  con- 
trolled by  monopolistic  influences.  I  have  formed  an  idea  of 
the  future  of  this  country,  and  I  might  give  it  utterance,  but 
that  there  is  good  authority  that  a  prophet  is  ''not  without 
honor,  save  in  his  own  country,  and  among  his  own  people." 
It  will  be  safer  to  prophecy  aj-ter  the  event.  If  there  could  be 
found  a  prophet,  who  would  be  heeded  and  listened  to,  he 
would  render  more  service  to  utter  warning  to  a  people  and 
a  land  that  is  dearer  to  us  than  this,  a  land,  alas! 

"  Where  wealth  accumulates  and  men  decay." 

I  will  say,  however,  as  to  what  is  present  and  before  us,  that 
the  financial  legislation  in  the  United  States  which  has  dou- 
bled the  value  of  the  dollar  while  oppressing  us.  has  for  many 

9  .        ' 


130 

reasons  given  an  impulse  to  this  conntrv,  so  that  in  a  few 
years  she  has  made  the  progress  of  decades.  By  doubling 
the  value  of  the  dollar,  at  the  dictation  of  Wall  Street  and 
London  banl^ers,  vre  have  in  effect  doubled  our  National, 
State  and  municipal  bonds  (which  was  the  end  in  view),  there- 
by in  effect  doubling  also  the  rate  of  interest  on  the  same, 
and  the  quantity  of  produce  and  the  amount  of  days'  labor 
requisite  to  pay  the  taxes  to  meet  them,  and  also,  of  course, 
doubling  the  cost  of  railroad  freight  and  passenger  fares — all 
of  which  have  to  be  met  with  cotton  at  seven  cents  a  pound, 
and  wheat  at  fifty  cents  a  bushel.  In  Mexico,  where  taxes 
and  railroad  charges  and  debts  remain  the  same  the  dollar 
also  remains  at  the  same  value  it  was  ten  or  fifteen  years  ago, 
consequently  her  debts,  taxes  and  railroad  charges  are  paid 
with  cotton  at  sixteen  centsper  pound,  and  wheat  at  $1.20  per 
bushel.  The  uncoined  silver  dollar  has  not  depreciated  either 
in  the  United  States  or  here.  An  ounce  of  silver  is  worth 
exactly  the  same  in  wheat,  cotton,  corn,  &c.,  as  it  ever  was,  in 
either  country.  The  difference  is  that  here  they  have  not 
demonetized  it,  while  with  us  legislation  has  been  procured 
by  the  bondholder  and  monopolv  influences  which  has  de- 
monetized silver  and  created  a  mythical  gold  dollar  which  the 
masses  never  see  and  never  handle,  and  by  making  that  my- 
thical dollar  the  standard  to  measure  values  they  have  shrewd- 
ly doubled  the  value  of  all  public  and  private  debts,  of  all  taxes 
and  the  cost  of  railroad  transportation.  The  sum,  by  this  legis- 
lative legerdemain,  thus  annually  transferred  from  the  pockets 
of  the  masses  to  that  of  the  monopolies,  from  the  wealth  pro- 
ducers to  the  wealth  consumers,  is  far  be3'ond  the  millions 
levied  by  Germany  on  conquered  France,  or  by  any  army  m 
all  history  on  a  foreign  pec  pie.  This  was  done  v^ithout  a 
bugle  blown,  a  lance  set  in  rest,  or  a  cannon  fired.  A  suffi- 
cient number  of  the  representatives  of  the  people  were  cap- 
tured, some  before  and  some  afte/  election,  and  then  as  Samp- 
son was  surrendered  to  the   Philistines,  we   were  "delivered, 


131 

bound,  into  the  hands  of  our  enemies."  No  wonder  that, 
staggering  under  such  a  levy,  our  country,  which  should  be 
the  most  prosperous  in  the  world,  is  financially  depressed, 
while  Mexico,  even  Mexico,  is  prosperous,  and  American 
energj''  and  capital  is  pouring  in  to  develop  it. — Adios. 
Soy  de  Uated  su  afino  atento  amigo  y  S.  S. 

Walter  Clark. 


Letter  to  "News  and  Observer.' 


OiTT  OF  Mexico,  January,  1896. 

This  country  is  developing  more  rapidly  probably  than  any 
other  on  the  planet,  and  could  not  help  being  prosperous  as 
matters  stand.  The  dollar  is  exactly  *h.e  same  value  it  was 
ten  or  fifteen  years  ago,  not  having  been  artificially  doubled 
in  value  by  legislation,  as  has  been  the  case  with  us.  Con- 
sequently, cotton  is  still  sixteen  cents  per  pound  and  wheat 
is  11.20  per  bushel,  while  fixed  charges,  as  taxes,  passenger  and 
freight  rates,  public  and  private  debts,  &c.,  remain  actually 
(as  well  as  nominally)  the  same.  With  us  in  the  United  States 
by  virtue  of  the  legislation  in  favor  of  the  bondholders,  these 
fixed  charges,  while  nominally  the  same,  are,  in  fact,  doubled 
as  it  takes  twice  the  amount  of  cotton,  corn,  wheat.  &c.,  to 
pay  them.  One  does  not  get  a  full  idea  of  the  enormity  of 
this  transaction  till  he  gets  here  and  sees  the  prosperity  of 
this  country  and  see  the  capitalists  who,  by  securing  this  legis- 
lation, have  doubled  the  value  of  their  United  States  bonds, 
investing  the  principal  and  interest  of  their  enhanced  value 
in  this  country  at  old  prices,  thus  securing  $2  of  property 
here  for  $1  loaned  the  United  States  government,  that  is, 
they  will  sell  a  $1,000  United  States  bond  for  gold,  buy 
$2,000  of  silver,  which  remains  at  the  old  value,  and  invest 
in  $2,000  of  property  here. 


132 

The  looting  of  Koine  by  Genseric  and  the  Vandals,  of  In- 
dia by  Hastings  and  Clive,  of  this  very  Mexico  by  Cortez  and 
the  Spaniards,  or  of  Peru  by  Pizarro,  all  pale  into  insignifi- 
cance, compared  with  the  magnitude  and  injustice  of  this 
robbery  practiced  upon  the  seventy-five  millions  of  the 
American  people  in  the  interest  and  by  the  procurement  of 
the  half  million  of  millionaires  and  their  agents  and  depend- 
ents, through  the  device  of  r.o  controlling  legislation  that 
every  dollar  of  National,  State,  county  and  individual  indebt- 
edness is  doubled  by  doubling  the  value  of  the  dollar.  Gen- 
seric, Clive,  Cortfz,  Pizarro,  risked  their  lives  and  had  brave 
men  behind  them,  and  they  at  least  pillaged  foreign  nations. 
But  this  crime  has  been  the  manipulation  of  the  tools  of  the 
bondholders,  there  has  been  nothing  heroic  and  the  only 
greatness  in  it  has  been  in  the  magnitude  of  the  plunder, 
which  surpasses  all  that  has  ever  yet  fallen  to  a  conquering 
army  in  the  wealthiest  country. 

There  was  no  excuse  for  it,  since  silver,  when  demonetized, 
was  worth  more  than  gold,  and  there  has  been  nothing  since 
to  depreciate  it.  That  silvei,  in  fact,  has  not  depreciated  in 
the  least  may  be  seen  right  here  in  Mexico,  and  throughout 
the  50,000,000  of  people  living  on  this  hemisphere,  south  of 
the  Eio  Grande,  in  all  which  countries  the  silver  dollar  will 
pay  for  as  much  taxes,  as  much  railroad  freight  and  passen- 
ger fare,  as  much  public  and  private  indebtedness  as  forirer- 
ly — and  farm  products  and  land  bring  as  much  as  ever. 
Neither  has  silver  depreciated  with  us,  but  it  is  the  gold  dol- 
lar which  has  been  doubled  in  value;  hence  debts,  public  and 
private,  taxes,  railroad  rates,  &c.,  are  actually  though  not 
nominally  doubled,  while  the  produce  has  tc  be  sold  at  half 
price  to  pay  them.  Every  farmer  who  sold  a  pound  of  cot- 
ton in  the  United  States  last  year  was  in  effect  taxed  six  cents 
a  pound,  or  $30  a  bale,  and  fifty  cents  in  the  bushel  on 
wheat.  The  robbery  perpetrated  on  the  farmers  of  the  South 
by  the  legislation  procured  by  the  machinations  of  the  com- 


133 

bined  capital  of  London  and  New  York,  on  the  cotton  crop 
alone,  of  8,000,000  bales  at  $30  per  bale,  is  $240,00(),0(mi  for 
the  3'ear  of  1895  alone.  The  profits  reaped  by  the  capitalists 
by  the  legislation  which  has  doubled  the  value  of  their  claims 
against  the  public  and  individuals,  is  practically  beyond  com- 
putation. It  "fatigues  the  indignation"  to  consider  it.  The 
wonder  is  not  that  therie  is  widespread  and  incurable  depres- 
sion, but  that  we  can  continue  to  exist  under  sucb  a  state  of 
things.  Were  we  not  the  wealthiest  and  most  energetic  and 
most  patient  peojile  on  the  face  of  the  globe,  we  would  sink 
under  it. 

It  is  by  no  means  certain  we  shall  continue  always  to  be  the 
most  patient.  Those  who  have  thus  pillaged  us,  and  \s  ho, 
elated  with  iheir  success  so  far,  threaten  to  still  further  con- 
tract the  greenback  and  thus  still  further  increase  the  value 
of  the  dollar,  may  learn  a  lesson  right  here  in  Mexico.  The 
Catholic  church  by  three  centuries  and  a  half  of  policy  as  de- 
liberately and  as  carefully  planned  as  that  of  the  monopolies 
and  the  money  power  in  the  United  States  to  day,  came  to 
own  absolutely  one- third  of  all  the  property  in  this  country  and 
controlled  the  balance.  The  masses  were  kept  in  ignorance 
and  the  leaders  and  the  intelligence  of  the  country  were  in- 
timidated or  bought.  But  there  cane  e  an  end  to  such  things. 
In  1859  the  property  of  the  church  was  confiscated.  The 
church  party  called  in  the  English,  the  Spanish  and  the 
French,  and  the  latter  gave  them  an  emperor.  But  the 
French  have  been  driven  out,  the  emperor  has  been  shot,  and 
to-day  throughout  this  great  country,  four  times  as  large  as 
France  or  Germany,  the  Catholic  church  does  not  own  a  foot 
of  soil  or  a  dollar  of  money.  The  church  buildings,  hoary, 
some  of  them,  with  nearl}''  four  centuries  of  use,  belong  to 
the  government,  and  services  are  conducted  in  theiu  only  by 
permission  of  the  authorities  elected  by  the  people.  Not  a 
priest  can  walk  the  streets  in  his  official  robes.  Mexico  re- 
mains Roman  Catholic  in  her  religion,  hut  when  the  alterna- 


134 

tivo  was  presented,  whether  the  church  should  own  the  coun- 
try or  the  country  should  o\vn  the  church,  Mexico,  in  spite 
of  the  centuries  of  veneration  for  religious  authority  and  the 
influence  of  consolidated  wealth  and  the  ignorance  and  pov- 
erty of  her  no  asses,  was  able  to  vindicate  the  rights  of  the  peo- 
ple. What  this  priestly  monopoly  was  to  Mexico,  the  money 
power  is  to  the  United  States,  The  multi-millionaires,  the 
bondholders,  the  trusts  and  monopolies  already  own  over  one- 
third  of  our  coantry  and  are  reaching  out  for  the  rest.  Many 
leaders  they  nominate  and  elect  to  office,  others  they  intimi- 
date or  corrupt.  But  our  people,  while  patient,  are  not  ig- 
norant, and  if  the  course  of  the  monopolies  and  combinations 
continues  unchecked,  they  will  wake  up  someraorcing  to  find, 
as  the  Catholic  church  did  here,  that  the  sovereign  people 
own  the  country  and  all  that  is  in  it.  The  Catholics  here 
venerated  the  church  fully  as  much  as  we  ever  did  the  rights 
of  individual  ownership  of  any  species  of  property,  but  the 
welfare  of  the  people  is  the  highest  law,  and  when  that  be- 
comes imperiled,  as  it  tvas  in  Mexico  by  the  mone}''  power  in 
the  shape  of  the  church,  and  as  it  is  in  the  United  States  by 
the  same  deadly  enemy  in  the  guise  of  multi-millionaires  and 
monopolies,  the  manhood  and  the  brains  and  the  honesty  of 
the  people  will  assert  themselves  and  we  shall  not  go  down  under 
the  same  enemy  that  destroved  Rome,  and  so  many  other 
nations  in  the  past.     The  world  is  older  and  wiser. 

The  gold  dollar  in  the  United  States  may  well  be  called  a 
mythical  dollar.  Kot  one  man  in  a  hundred  ever  sees  one. 
It  is  not  used  to  buy  corn,  or  vvheat,  or  flour,  or  railroad 
tickets,  or  dry  goods.  It  is  only  for  the  sacred  use  of  the 
idle  rich  when  they  wish  to  measure  by  a  high  standard, 
doubled  in  value,  the  principle  and  interest  of  bonds,  which 
on  their  face,  by  the  contract,  are  payable  ic  coin — i.  e. ,  in 
either  gold  or  silver. 

In  drawing  these  lessons  from  the  past  experience  and  the 
present  prosperity  of  Mexico,  there  are  those   who  will  say 


135 

Mexico  is  inferior  to  the  United  States  in  education,  in  civili- 
zation, and  in  many  other  respects.  And  so  it  is — and  so 
much  the  worse  for  the  objectors.  For  if  Mexico,  notwith- 
standing all  these  disadvantages,  is  prosperous  and  going  for- 
ward by  leaps  and  bounds  by  keeping  her  standard  of  values 
at  the  same  level,  so  much  the  greater  is  the  condemnation 
of  the  men  Mho,  in  spite  of  our  great  and  manifest  superiori- 
ty, have  brought  the  curse  and  blight  of  a  long  enduring  de- 
pression upon  us  by  robbing  the  wealth-producers  in  the  in- 
terest of  the  wealth-consumers,  through  the  device  of  doub- 
ling, by  crooked  legislation,  the  value  of  the  dollar.  And  if 
Mexicans,  with  350  years  of  priestly  rule,  300  of  which  were 
also  under  a  foreign  yoke,  and  50  more  passed  amid  inter- 
national dissensions,  could  assert  themselves  and  throttle  the  gi- 
gantic money  power  which  oppressed  them,  what  cannot, 
and  what  will  not,  seventy-tive  millions  of  the  foremost  peo- 
ple of  the  earth  be  able  to  do  when  satisfied  that  they  owe  it 
to  themselves  and  their  posterity  to  break  the  yoke  which 
galls  them? 


FREE  COINAGE  INDISPENSABLE,  BUT  NOT  A 
PANACEA. 


Passenger  Fares,  Freight  Charges  and  Free  Passes. 


In  The  "Arena,"  November,  1896. 


The  question  has  been  often  asked  whether  the  free  coin- 
age of  silver  would  be  a  panacea  for  the  depression  under 
which  the  country  now  drags  out  a  lingering  life.  The 
friends  of  free  coinage  do  not  consider  it  a  universal  remedy, 
but  an  indispensable  one.  The  single  standard  is  the  rock 
which  has  been  placed  against  the  door  where  our  hopes  have 
been  buried,  and  until  it  is  rolled  away  there  can  be  no  resur- 
rection of  our  prosperity.  Dives  is  urgently  opposed  to  the 
removal  of  the  stone,  but  certainly  Lazarus  cannot  come  forth 
till  it  has  been  taken  away. 

Among  the  many  oppressions  visited  upon  the  masses  by 
their  present  masters  who  have  "laden  the  people  with  bur- 
dens grievous  to  be  borne,  but  which  they  will  not  touch  vv^ith 
so  much  as  one  of  their  lit*tle  ringers,''  are  the  freight  rates 
and  passenger  fares  which  have  not  decreased  with  the  de- 
crease in  the  value  of  our  products,  but  have  enhanced  with 
the  enhanced  value  of  the  dollar,  the  owners  of  the  great  rail- 
way lines  being  among  the  most  active  agents  in  procuring 
the  adoption  of  the  gold  standard,  and  they  are  the  largest 
Dontrinbutors  to  the  campaign  fund  to  be  used  against  the 
restoration  of  silver  to  free  coinage. 

J.  Pierpont  Morgan,  who  was  conspicuous  in  procuring  Mr. 
Cleveland  to  issue  the  $262,000,000  of  new  bonds,  and  whose 


137 

firm  shared   largely  in  the  $18,000,000  of  profits  the  syndi- 
cate made  by  the  handling  of  the  issue,  is  the  principal  owner 
of    the  Southern  Kailway  Co's  lines.      When  cotton    was  fif- 
teen cents  a  pound  (as  it  still  remains  in  Mexico)  one   pound 
of  cotton   would  pay  for  five  miles  of   passenger  fare   on  his 
railroads;   now,  though  he  and  his  combination  have  increased 
the  value  of  money  till  cotton  brings  only  six  and  seven  cents 
a  pound,  he   has  not   reduced   his   fares   nor   freights,  and  a 
pound  of  cotton  will  only  carry   its  producer   two  miles,  in- 
stead of  five  as  formerly.     Freights   remain  as   high  as  ever 
and  trucking,  v\^hich  should  be  a  very  profitable  business,  ha 
been  reduced  to  the  same  level  as  other  farming  business,  and 
in  both  alike  all  the  profit  is  absorbed  by   the  transportation 
charges. 

Inter-  State  Qommission.  — Is  there  no  protection  for  the 
people?  Certainly  there  is,  but  it  is  in  their  own  hands.  It 
cannot  be  found  in  the  railroad  commissions.  The  Inter- 
State  Commission  has  proved  so  utterly  inefficient  that  two 
of  the  great  parties  have  recently  put  into  their  platforms 
demands  for  its  being  made  really  efficient.  In  fact  the  In- 
ter-State Commission  has  practically  restricted  itself  to  pro- 
tecting the  corporations  against  hurting  each  other  by  reduc- 
ing rates,  with  no  protection  to  the  people  against  exorbitant 
rates,  nor  against  secret  rebates  to  large  or  favored  shippers, 
"which  were  the  objects  in  view  in  creating  the  commission. 
Whenever  that  commission  has  shown  any  disposition  to 
serve  the  object  of  its  creation,  it  has  been  promptly  shackled 
by  injunctions,  or  highly  technical  rulings,  by  the  Federal 
judges,  holding  their  positions  for  life,  and  a  large  propor- 
tion of  them  having  secured  their  appointments  by  the  influ- 
ence of  the  corporations  in  whose  behalf  they  extend  their 
powers  by  every  possible  construction.  Besides,  it  is  not 
certain  that  all  the  appointments  to  the  Inter-State  Commis- 
sion itself  have  been  made  without  the  influence,  more  or  less 


138 

activ^e,  of  great  railroad  systems  interested  in  the  future  ac- 
tion ofsuch  appointees. 

State  Railroad  Commissions. — After  this  result  with  the 
Inter-State  Commission,  could  the  record  of  the  State  Com- 
mission be  other  than  di&appointin«^?  In  some  cases,  as  a 
Western  railroad  president  cynically  ana  openly  declared,  the 
railroads  have  "  simply  added  the  railroad  commission  to 
their  assets."  In  the  majority  of  instances,  however,  the 
members  of  the  State  Railroad  Commissions  have  been  gen- 
tlemen of  unimpeachable  character,  but  elected  by  Legisla- 
tures instead  of  the  people  (a  radical  defect  which  the  corpo- 
rations carefully  looked  to),  they  have  in  rare  instances  had 
a  majority  of  progressive  members  in  close  sympathy  with 
the  people.  They  have  generally  been  intensely  conservative 
listening  to  the  assertions  of  impending  ruin,  literally  made 
by  railroad  managers  if  rates  were  reduced,  and  not  seeing 
the  patent  ruin  to  the  people  if  they  were  not.  As  a  rule, 
railroad  commissions  have  limited  themselves  to  a  cheese  par- 
ing reduction  of  one-fourth  or  one-eighth  of  a  cent  per  mile 
on  passenger  fares,  and  a  similar  microscopic  reduction  on 
freight  rates,  and  with  ordering  a  few  railroad  stations  built, 
where  the  corporations  were  not  over  much  indisposed  to 
bnild  them.  Some  times  they  have  somewhat  raised  the 
valuation  of  railroad  property  for  taxation  over  which  those 
corporations  have  raised  a  sham  battle,  knowing  that  the 
extra  taxation  would  really  be  paid  by  the  people,  by  quietly 
raisino^  the  freisfht  rates  on  certain  articles.  When  the  Stan- 
dard  Oil  Company  was  assessed  for  a  part  of  the  taxes  it 
justly  owed,  RocU'efeller  said,  "add  one-fourth  of  a  cent  to 
the  price  of  oil  till  the  people  have  paid  our  taxes." 

The  only  wav  to  reduce  the  burden  on  the  people  is  by  a 
bona  fide  genuine  cut  in  passenger  and  freight  rates.  It  may 
be  said  of  more  than  one  railroad  commission,  that  at  a  re- 
spcetful  distance  they  imitate  the  ways  of  Providence  in  one 
particular.      It   has  been   said,  "He   takes  a  step — and   ages 


131) 

have  rolled  away."  All  railroad  commissions  probably  when 
first  appointed  have  made  a  show  of  reform  by  cutting  off 
some  infinitely  small  amount  from  railroad  charges  as  one- 
eighth  or  one-fourth  of  a  cent  from  passenger  fares  and  then 
— two  or  three  generations  hence,  if  the  people  wait  so  long, 
they  may  possibly  cut  off  another  one-eighth  of  a  cent.  In 
the  meantime  the  multi-raillioDaires  who  own  these  roads,  li\- 
ing  m  their  marble  palaces  in  London  and  New  York,  with 
their  yachts,  fast  women  and  fast  horses,  have  gone  on  with 
their  fellow  conspirators  enhancing  the  value  of  the  dollar, 
reducing  the  value  of  produce  and  thereby  more  than  doub- 
ling their  passenger  and  freight,  rates. 

Effect  of  Excessive  Rates.  —  It  is  in  this  way  that  Ireland, 
naturally  one  of  the  foremost  countries  on  the  globe,  has  been 
pauperized.  All  the  profits  of  the  soil  have  been  drawn  in 
the  shape  of  rents  by  non-resident  land  owners  to  London 
and  nothing  going  back,  the  country  has  been  impoverished 
like  a  field  from  which  all  the  crops  are  cut  and  nothing  re- 
turned. In  like  manner  to-day,  the  South  and  West  are  im- 
poverished by -all  the  profits  of  agriculture  being  tak«n  to 
London  and  J^ew  York  in  the  shape  of  excessive  transporta- 
tion charges  and  nothing  being  returned  or  spent  among  us, 
the  South  and  West  are  rapidly  being  reduced  to  the  con- 
dition of  Ireland. 

In  honest  fact,  the  railroad  commissions  of  the  several  States 
have  merely  served  as  buffers  lo  protect  the  railroads  from 
real  criticism  by  the  people,  and  from  direct  legislation  to 
reduce  their  rates,  while  the  States  have  uselessly  taxed  them- 
selves to  pay  the  several  commissions"  salaries  to  seem  to  do 
something . 

In  the  public  distress  we  demand  real  relief  and  we  must 
have  it,  and  not  its  phantom 

What  is  the  remedy?  The  remedy  is  to  cut  the  rates  and 
exactly  in  proportion  as  these  multi-millionaire  railroad  kings 


140 

have,  in  combination  with  others  of  their  kind,  cut  the  pricss 
of  our  produce. 

United  States  Supreme  Court  Decisions. — The  Supreme 
Court  of  the  United  States  has  decided  (Chicago  Railrcad  vs. 
Wellman,  143  U.  S.,  and  in  several  other  cases)  that  rates 
which  will  allow  a  moderate  interest  on  the  actual  value  of 
the  railroad  property  are  valid.  In  that  case  itsustained  apas- 
senger  fare  of  two  cents  per  mile.  Upon  the  same  basis,  every 
passenger  and  nearly  every  freight  rate  should  be  cut  in  two. 
Itiswhathas  been  done  with  the  prices  of  our  produce  and  will 
simply  restore  railroad  charges  to  their  former  basis.  Can 
the  railroads  stand  it?  Upon  the  basis  of  watered  stock, 
making  the  railroad  patrons  pay  dividends  and  interest  on 
three  or  four  times  the  value  of  the  railroad,  they  cannot. 
But  upon  the  legal  requirement  of  moderate  interest  on  the 
real  value  of  railroad  property,  they  can.  Besides  the  divi- 
dends and  interest  on  stock  and  bonds  on  three  or  four  times 
the  value  of  the  property  is  not  all  the  present  high  rates 
are  levied  for.  In  the  drst  place  the  freight  shippers  and 
passengers  are  taxed  to  pay  ec  or  mo  us  salaries  to  railrocid  offi- 
cials, ranging  from  8100,000  per  year  down.  The  officials 
are  as  numerous  as  their  salaries  are  exorbitant.  J.  Pierpont 
Morgan  pays  out  of  this  levy  upon  the  poor  Southern  people, 
$50,000  a  year  to  his  chief  manager.  President  Spencer,  while 
his,  like  all  other  big  railroad  systems,  has  three  or  four  hon- 
orary sub- presidents  at  approximate  salaries,  each  equipped 
with  palace  car  and  staff  of  servants,  and  a  host  of  other  offi- 
cials with  high  sounding  titles,  salaries  in  proportion  and 
duties  in  the  inverse  order,  while  the  real  work  is  done  by 
hard  working  subordinates  with  moderate  salaries.  In  addi- 
tion, the  travelling  and  shipping  public  is  loaded  with  the 
sums  used  in  running  newspapers,  editors  and  lawyers,  the 
maintenance  of  expensive  lobbies  at  all  the  State  capitals  and 
at  Washington,  and  with  the  free  travelling  of  all  those  whom 
the  corporations  think  can  be  influenced  in  that  way,  for  the 


141 

cost  of  the  passage  of  those  who  travel  free  must  be  added  to 
the  charge  against  those  who  do  not.  It  must  be  noted  that 
this  host  of  $100,000,  $50,000,  $25,000,  and  $10,000  salaries 
— not  one  of  which  can  be  really  earned — is  collected  out  of 
the  people  by  the  station  agents  as  surely  as  the  salaries  of 
the  Governor  and  other  State  officers  are  collected  by  the 
sheriff.  The  people  of  the  greatest  and  wealthiest  States  do 
not  pay  their  highest  officials  upon  any  such  scale  and  they 
have  the  same  right  to  regulate  the  salaries  of  railM  ay  offi- 
cials, unless  they  can  be  paid  inside  the  six  per  cent,  interest 
upon  the  real  value  of  the  roads,  to  which  point  and  below 
it,  the  Legislature  has  power  to  cut  down  the  rates.  The 
Supreme  Court  of  the  United  States  in  many  cases  say  that 
these  high  salaries  and  other  unnecessary  expenses  need  not 
be  considered  by  the  Legislature  in  fixing  reasonable  railroad 
rates. 

People  Pay  Lease  Money. — H3re  may  be  noted  another 
favorite  extortion  practiced  on  the  traveller  and  freight  ship- 
per. One  railroad  will  lease  another.  The  leaseo  road  is 
only  entitlea  to  rates  that  will  produce  not  exceeding  six  per 
cent,  on  the  value  of  its  property  and  these  rates  should  not 
be  increased  by  leasing  to  another,  yet  the  lessee  road  will 
put  its  rates  so  high  as  to  earn  the  six  per  cent,  rental  con- 
tracted for  and  six  per  cent,  to  twenty  per  cent,  additional 
for  itself  besides  the  high  salaries  to  the  great  officials,  news- 
papers and  lobbies  of  the  lessee.  This  is  making  the  people 
pay  the  rental  for  them  and  the  operating  company — though 
not  spending  a  dollar  to  build  a  road — taxes  the  people  an 
additional  six  per  cent,  to  twenty  per  cent,  on  a  paper  capi- 
tal. Reduce  the  charges  for  fares  and  freights  to  the  legiti- 
mate six  per  cent,  on  the  cost  of  the  leased  roads,  and  we 
would  cease  to  see  competition  stilled  by  leasing   rival  roads. 

Two  Cents  Per  Mile. —li  the  people  insist  on  the  relief 
they  are  entitled  to,  there  is  scarcely  a  passenger  or  freight 
rate  that  cannot  be  cut  in  two.     Two  cents  per  mile  is  the 


14-2 

highest  that  can  fairly  be  allowed  for  first-class  fare  on  any 
railroad,  and  on  most  of  them  economists  say  that  one  cent 
per  mile  would  pay  a  fair  interest  oa  the  property  actually 
used.  We  should  make  fewer  milliouaires;  railroad  salaries 
would  be  more  moderate,  railroads  would  run  fewer  newspa- 
pers and  lobbies.  But  on  the  other  hand,  the  country  v  ould 
be  prosperous.  Instead  of  a  few  cars  half  filled  with  people, 
and  a  large  part  of  them  with  free  passes  in  their  pockets, 
there  would  be  more  trains  and  cars,  filled  with  people.  The 
freight  rates  would  not  afl'ord  a  few  residents  of  New  York 
and   London  palaces  with  all  their  adjuncts, 

"Where  low-browed  baseness  wafts  perfume  to  pride," 

but  there  would  be  countless  thousands  of  happy  homes 
when  the  producer  can  get  his  produce  to  market  without  all 
the  margin    being  taken  oS  to  pay  for  transportation. 

The  Remedy. — How  can  these  moderate  rates  be  obtained? 
Clearly,  experience  has  demonstrated  that  we  cannot  get  them 
from  the  railroads  themselves  nor  from  the  railroad  commis- 
sions, either  State  or  National.  The  remedy  is  by  an  act  of 
the  Legislature  as  to  rates  \\ithin  the  States,  and  by  act  of 
Congress  as  to  Inter- State  rates,  which  acts  should 

(1)  Cut  down  passenger  and  freight  rates  to,  on  an  aver- 
age, to  one-half  those  now  exacted  to  accord  with  the  doubled 
value  of  money  and  the  halving  the  prices  of  produce. 

(2)  More  powers  should  be  given  the  railroad  commissions 
with  stricter  penalties  foi  the  non-observance  of  their  regu- 
lations. 

(3)  Free  passes  snould  be  rigorously  forbidden,  as  is  now 

done  by  the  Constitution  of  New  York  and  several  other 
States. 

And  lastly,  railroad  commissions  should  be  made  independ- 
ent of  corporate  influence,  as  far  as  possible,  by  being  in  al 
cases,  made  elective  by  the  people  instead  of   by  the  Legisla- 
ture.    The   railroad  lobby   cannot  control  elections   by   the 


143 

people  as  easily  as  it  can  have  a  decidirg  influence  in  a  legis- 
lative caucus. 

There  is  no  influence  more  debasing  in  legislation  than  that 
of  the  lobby.  Every  well  wisher  ol'  his  country  would  wish 
to  see  it  broken  up.  Chief  Justice  JVlaxwell,  of  Nebraska, 
discusses  this  subject  and  the  reruedy  for  it  in  a  late  number 
of  the  American  Law  Review.  He  calls  attention  to  the  fact 
that  very  recently  the  Governors  of  Illinois  and  Missouri  were 
forced  to  call  special  sessions  because  the  corporation  lobbies 
had  defeated  necessary  legislation  at  the  regular  session. 
But  instances  abound.  It  is  notorious  that  in  all  the  South- 
ern States  the  corrupt  legislation  of  carpet-bag  days  was  pro- 
cured by  railroad  lobbies. 

Free  Passes.  —Attention  should  now,  and  pending  the  elec- 
tion of  members  to  the  Legislature,  be  pointedly  called  to  the 
fact  that  the  most  potent  lever  of  the  corporation  lobby  is 
the  free  pass.  As  these  favors  are  not  sent  to  members  be- 
fore they  become  such,  and  cease  when  they  cannot  longer  vote 
on  railroad  measures,  that  fact  alone  should  prevent  accept- 
ance by  any  -member.  The  excuse  is  "they  all  do  it,"  and 
hence  an  aroused  public  conscience  must  procure  an  act  for- 
bidding free  passes.  This  the  people  have  now  forced  into 
the  Constitution  of  I^ew  York  and  several  other  states.  A 
similar  provision  should  be  in  every  State  Constitution. 
There  is  no  excuse  ir  any  member  of  the  Legislature  taking  a 
free  pass,  as  he  is  one  of  the  few  officers  expressly  provided 
by  the  State  with  mileage,  and  the  sum  allowed  is  enough  to 
pay  his  actual  railroad  fare  to  the  State  Capital  and  home 
again,  not  once  only,  but  several  times.  Yet  the  free  pass 
is  the  railroad  lobbyists  strongest  pull.  A  railroad  official 
has  been  heard  to  defend  it  on  the  ground  that  he  could  "'in- 
fluence many  a  man  by  a  free  pass  to  whom  he  dare  not  offer 
money  direct."  In  the  last  Norih  Carolina  Legislature  a  bill 
to  forbid  free  passes,  copied  from  the  provision  in  the  JSew 
York  Constitution,  w^as  introduced  and  favorably  reported  by 


144 

the  committee,  but  it  was  not  allowed  to  pass,  being  stolen 
from  the  files  no  less  than  three  times  by  som.e  railroad 
lobbyist.  A  legal  investigation  resulted  in  the  desired  delay 
and  nothing  more.  The  bill  had  heen  drawn  by  myself, 
being  copied  from  the  Kew  York  Constitution,  and  a  well 
known  railroad  official  called  on  me  in  person  to  secure  the 
withdrawal  of  the  bill.  On  being  told  that  the  bill  had  not 
only  been  prepared  by  request,  but  that  it  \^as  in  the  interest 
of  honesty  and  honest  legislation,  he  used  the  following  lan- 
guage, which  may  be  pondered  over  by  all  honest  men  outside 
of  North  Carolina  as  well  as  within  its  bounds.  Said  he: 
"It  might  as  well  be  withdrawn.  It  can  never  pass.  The 
fellow^s  who  come  here  to  the  Legislature  are  always  anxious 
to  be  raped  with  a  pass.  There  is  A  (naming  a  prominent  legis- 
lator), wh}^  on  yesterday  he  asked  for  a  pass  for  himself,  his 
wife,  his  sister,  his  tw^o  children,  and  his  aunt,  and  do  you 
think  such  d — d  cattle  as  that  v\ill  vote  against  free  passes?'' 

SucJi.  Cattle  As  That. — "Such  cattle  as  that"  is  the  opinion 
railroad  men  have  of  legislators  who  are  to  vote  on  their 
measures,  and  yet  take  railroad  money  in  the  shape  of  free 
passes.  Now  is  the  time  the  people  should  discriminate  and 
see  whether  they  are  sending  railroad  cattle  or  men  lo  repre- 
sent them  in  the  Legislatures  of  the  several  States. 

If  proper  care  is  taken,  Legislatures  in  the  several  States  can 
be  elected  this  fall,  as  well  as  a  Congress,  which  will  give  a 
hona  fide  honest  reduction  in  railroad  charges,  so  material  in 
amount  as  to  stop  the  manufacture  of  millionaires,  necessitate 
moderate  salaries  for  railroad  olijcials,  the  dropping  of  rail- 
road ownership  of  newspapers  and  lobbies,  and  which  shall 
restore  prosperity  to  the  wealth -producers  of  the  land.  All 
this  can  be  done  by  electing  Legislatures  that  will  not  be  hum- 
bugged or  lobbied,  and  that  will  faithfully  cut  rates  down  to 
the  legal  limit  of  six  per  cent,  or  less,  on  the  actual  worth  of 
the  roads  "without  trimmings"  for  high  salaries,  lobbies,  and 
other  expensive  gear. 


145 

Control  hy  Lefjislation. — In  Wellman's  case,  143  U.  S,  Re- 
ports, the  court  says  that  the  power  of  the  Legislature  to  cut 
down  and  fix  all  railroad  charges  "is  not  subservient  to  the 
discretion  of  the  railroad  corporation,  which  may  by  exhorbi- 
tant  and  unreasonable  salaries,  cr  in  some  other  improper 
way,  transfer  its  earnings  into  what  it  is  pleased  tc  call 
'operating  expenses/  "  In  other  words  the  salaries  and 
other  railroad  expenses  being  collected  out  of  the  people  by 
one  of  their  own  creatures,  their  representatives  in  Legislature 
assembled,  have  a  right  to  supervise  and  pass  upon  all  rail- 
road salaries  and  expenses  when  they  come  to  fix  the  reason- 
able rates  the  railroads  shall  be  allowed  to  charge.  The 
people  have  the  relief  in  their  own  hands. 

In  the  South  one  great  railroad  system  has  been  more  con- 
siderate of  the  poverty  of  our  people  than  the  railroad  com- 
missions, and  has  itself  presented  the  public  voluntarily  with 
a  reduction  of  33|^  per  cent,  on  their  rates.  Another  still 
nore  liberal,  has  granted  a  reduction  from  their  former  high 
rates  of  eighty  per  cent.,  though  it  has  been  charged — I  know 
not  how  truly — that  the  latter  at  once  procured  from  a  judge 
an  injunction  against  their  own  liberality.  If  railroad  com- 
missions will  not  give  the  people  the  benefit  of  an  order  re- 
ducing rates,  they  should  at  least  be  a  "ratchet  and  pawl" 
to  prevent  their  going  up  again.  The  railroad  companies 
having  voluntarily  reduced  rates  are  estopped  to  say  the  new 
rates  are  not  high  enough.  They  have  never  been  accused 
of  not  taking  care  of  their  own  interests  or  of  being  too 
benevolent  to  the  public. 


10 


THE  TELEGRAFH  IN  ENGLAND. 


In  "Arena,"  August,  1895. 


As  taxes  upon  the  diffusion  of  intelligence  among  men  and 
deficiencies  in  the  postal  service  affect  every  one,  I  condense 
the  following  from  the  official  report  of  the  workings  of  the 
Go^'^ernment  Telegraph  in  England,  made  to  our  Government 
by  the  United  States  consul  at  Southampicn  (Eng.),  and 
printed  in  the  last  report  of  the  "Consular  Keports."  He 
says : 

"On  January  29,  1870,  all  the  telegraphs  in  the  United 
Kingdom  were  acquired  by  the  Government  from  the  corpora- 
tions which  had  previously  operated  them  and  thenceforward 
became  an  integral  part  of  the  postoffice.  The  English  people 
owed  this  great  measure  in  their  interests,  like  so  many 
others,  to  Mr.  Gladstone,  who  bore  down  all  opposition  from 
the  companies  who  were  making  big  profits.  Till  then  the 
districts  paying  best  had  ample  service,  though  at  high  rates 
(as  is  still  the  case  with  us)  while  whole  sections  off  the  lines 
of  railway  were  destitute  of  telegraphic  facilities.  The  Gov- 
ernment at  once  extended  the  telegraph  to  all  sections  and 
reduced  the  rate  to  one  cent  a  word.  The  following  is  the 
result:  In  1870,  under  private  o\i  nership,  seven  millions  in- 
dividual messages  and  twenty-two  millions  words  of  press  dis- 
patches were  annually  sent.  Now  that  the  telegraph  is 
operated  by  the  postoffice,  the  annual  number  of  individual 
messages  sent  is  seventy  millions,  (ten  times  as  many)  and 
over  six  hundred  millions  words  of  press  dispatches  (thirty 
times  as  many),  are  used.     This,  at  a  glance,  demonstrates 


147 

the  overwhelming   benefit   to  the   public  of  the  change  and 
their  appreciation  of  it. 

"The  press  rates  have  been  reduced  so  low  that  every  w  eekly 
countr}'^  paper  can  afford  to  print  the  latest  telegraphic  dis- 
patches as  it  goes  to  press,  and  a  telegraph  or  a  telephone  is 
at  every  country  postolSce.  In  London  the  telegraph  has 
largely  superseded  the  mail  for  all  the  small  and  necessary 
details  of  life — to  announce  that  you  are  going  to  dine  at  a 
certain  house,  or  to  inform  your  wife  that  you  are  detained 
on  business,  and  not  to  keep  dinner  waiting  and  the  like, — 
over  30,000  telegranas  being  sent  daily  in  that  city  alone. 
The  following  is  quoted  from  the  consul  verbatim:  'The  ser- 
vice is  performed  with  the  most  perfect  punctuality.  It  is 
calculated  that  the  average  time  employed  to-day  in  the  trans- 
mission of  a  telegram  between  t\^o  commercial  cities  in  Eng- 
land varies  from  7  to  9  minutes,  while  in  1870  (under  private 
ownership),  two  to  three  hours  were  necessary." 

The  rate  of  one  cent  a  word  includes  delivery  within  the 
postal  limits  of  any  town  or  within  one  mile  of  the  postoffice 
in  the  country. 

Beyond  that  limit  the  charge  is  twelve  cents  per  mile  for 
delivery  of  a  message.  The  telegraph  being  operated  as  a 
constituent  part  of  the  postal  service,  it  is  not  possible  to  state 
how  much  profit  the  government  receives  from  it,  but  the 
English  government  does  not  consider  that  it  should  be  treated 
as  a  source  of  revenue.  It  regards  it  as  a  means  of  informa- 
tion and  education  for  the  masses,  and  gives  facilities  of  all 
kinds  for  its  use  and  its  extension  in  all  directions." 

This  unbiased  and  impartial  report,  officially  made  to  our 
Government,  is  worthy  of  thought  and  consideration.  It  may 
be  added  that  in  every  civilized  country,  except  this,  the  tele- 
graph has  long  since  been  adopted  as  one  of  the  indispensable 
agencies  of  an  up-to-date  Postoffice  Department.  Even  in 
half  civilized  Paraguay  (as  we  deem  it),  they  have  better 
postal  facilities  than   we,    for  the   postoffice  there  transmits 


148 

telegrams  at  one  cent  a  word  and  rents  out  telephones  at  $1 
per  month. 

At  present,  owing  to  high  rates,  forty-six  per  cent,  of  all 
telegrams  in  this  country  are  sent  by  speculators  (who  thus 
get  an  advantage  over  producers),  and  only  eight  per  cent, 
are  social  or  ordinary  business  messages.  In  Belgium,  v^here 
the  government  rate  is  less  than  one  cent  per  word,  the 
social  and  ordinary  business  messages  between  man  and  man 
are  sixty-three  per  cent,  of  the  whole.  Figures  could  not  be 
more  eloquent  as  to  the  vast  benefit  this  confers  upon  the 
great  mass  of  the  people  who  bear  the  bulk  of  the  burdens  of 
any  government,  and  receive  so  few  of  its  benefits.  With 
the  telegraph  and  telephones  operated  by  our  postoffice,  at 
moderate  rates— -say  five  or  even  ten  cents  per  message — a 
similar  change  would  take  place  here.  Individual  aud  news 
messages  would  increase  ten  to  thirty  fold  as  elsewhere — and 
probably  more-— and  the  monopoly  now  held  by  speculators 
would  cease. 

The  average  telegraph  rates  now  charged  in  this  country 
average  by  the  reports  to  Congress,  thirty-one  cents  per  mes- 
sage— three  times  the  average  rates  in  all  the  countries  un- 
der postoffice  telegraph  service — and  experts  say  that  our 
Government  could  probably  afford,  with  the  vast  increase  of 
business,  a  uniform  rate  of  five  cents,  as  the  average  cost  of 
a  message  is  much  less  than  that.  The  telegraph  plants  now 
in  use  could  be  superseded  by  the  government,  according  to 
experts,  with  a  superior  plant  at  a  cost  of  115,000,000,  while 
the  present  corporations  are  strangling  commerce  to  earn 
heavy  dividends  on  a  watered  stock  of  over  8150,000,000. 
According  to  English  experience  the  transfer  of  the  telegraph 
to  the  Postoffice  Department  would  result:  (1)  In  a  uniform 
rate  of  ten  cents  for  ten  words,  between  all  points,  or  possibly 
less.  (2.)  An  increase  in  individual  messages  of  at  least  ten 
for  every  one  now  sent.  (3.)  A.n  increase  in  press  dispatches 
of  thirty   words  or  more  for  every   one  now  sent.     (4.)  A 


149 

popularization  of  the  telegraph  for  all  uses,  social  or  business. 
(5.)  An  increase  in  promptness  of  delivery,  the  average  there 
being  now  seven  to  nine  minutes  as  against  two  to  three  hours 
formerly.  (6.)  No  section  would  be  destitute,  but  at  each 
one  of  our  70,000  postoffices  there  would  be  a  telephone  or 
telegraph.  By  adopting  the  telefhone  at  most  postoffices,  in- 
stead of  the  telegraph,  the  increase  in  the  number  of  post- 
office  employees  would  be  inconsiderable  The  vast  influence 
of  the  great  telegraph  monopoly  can  be  used  for  political  pur- 
poses by  coloring  news  and  in  other  more  direct  ways.  When 
the  telegraph  service  is  made  a  part  of  the  postoffice,  and 
placed  under  civil  service  rules,  and  subject  to  the  ciirect  force 
of  public  opinion,  the  experience  in  other  countries  has  been 
that  it  exerts  no  more  power  on  party  politics  than  the  army 
or  judiciary.  Originally  the  telegraph  (184-l:-47),  belonged  to 
the  postoffice.  When  it  was  abandoned  to  private  corpora- 
tions on  account  cf  its  supposed  expense,  lienry  Clay,  Cave 
Johnson,  and  other  leaders  of  both  parties  had  the  foresight 
to  foretell  the  mischief  done  in  abandoning  an  essential  gov- 
ernmental fu-nction  to  private  monopoly. 

To  prevent  this  great  benetit  of  a  modernized  postal  ser- 
vice being  given  to  the  masses,  and  to  preserve  to  consoli- 
dated capital  control  of  the  most  eflicient  avenues  of  intelli- 
gence, with  the  great  advantages  thus  given  that  element,  in 
addition  to  the  enormous  tolls  it  can  levy  on  the  rest  of  the 
nation,  there  is  practically  only  the  inexorable  will  of  one 
powerful  and  exacting  corporation  which  has  fastened  itself 
on  the  body  politic.  It  is  the  oldest  trust  in  this  country. 
It  is  the  pioneer  on  which  so  many  others  have  patterned. 
It  is  the  most  burdensome  because  its  oppressive  tolls  restrict 
communication  between  men,  and  is  a  tax  on  knowledge.  It 
is  iUegal  (since  the  Constitution  requires  Congress  to  establish 
the  postoffice),  to  leave  this  most  essential  function  of  a 
modern  up-to-date  postal  service  in  the  hands  of  private  cor- 
porations.    It  is  a  source  of  gigantic  emolument   to  them, 


150 

while  the  government  restricts  its  postal  service  to  antiquated 
and  more  dilatory  processes.  It  is  no  wonder  that  such  a 
postal  service  is  not  self-sustaining,  and  shows  an  annual  de- 
ficit, while  the  telegraph  companies  pay  enormous  dividends. 
In  other  countries  where  the  telegraph  is  a  part  of  the  Post- 
office  Department  that  Department  shows  annual  profits. 
But  the  monopoly  fastened  on  us  is  intrenched  in  the  sym- 
pathy of  all  other  trusts.  It  has  th<^  support  of  the  large  city 
dailies  (all  owned  by  large  capitalists),  who  fear  the  competi- 
tion of  dailies  in  sncall  towns  and  of  the  weeklies  if  news 
should  become  free,  and  its  transmission  cheaper,  over  a  gov- 
ernment postal  telegraph.  It  is  backed  by  the  powerful  lob- 
by it  constantly  maintains  at  ^Yashington,  paid  out  of  the  ex- 
cessive telegraphic  rates  (still  exacted  io  this  country  alone), 
out  of  a  long  suffering  and  too  patient  people.  And  not 
least,  it  is  said  that  it  distributes  franks  to  every  Senator  and 
every  member  of  Congress.  How  many  accept  these  favors 
and  how  many  are  influenced  by  them  no  one  knows  except 
the  corporation  officials,  but  that  they  do  know  may  be  seen 
from  the  fact  that  tenders  of  such  favors  have  not  ceased. 


THE  ELECTION  OF  POSTMASTERS  BY  THE 
PEOPLE. 


"Arena,"  June,  1894. 


The  Constitution  of  this  Union  of  States,  adopted  by  our 
forefathers  at  Philadelphia,  in  1787,  was  a  very  remarkable 
instrument.  In  many  respects  it  was  the  most  admirable 
framework  of  government  which  the  ages  had  produced. 
But  like  all  human  productions  it  had  its  faults.  The  gene- 
ration which  made  it  added  no  less  than  twelve  amendmentB. 
Three  have  since  been  added.  Another,  providing  tor  the 
election  of  United  States  Senators  by  the  people,  instead  of 
by  the  Legislatures  of,  the  respective  States,  commands  pop- 
ular approval,  and  will  no  doubt  be  adopted.  The  neces- 
sity for  it  has  been  fully  demonstrated.  It  is,  besides, 
practically  adopted  in  several  States  already  by  the  custom 
of  the  State  party  conventions  nominating  a  candidate  for  the 
approaching  vacancy  in  the  Senate,  and  the  members  of  the 
Legislature  being  elected  upon  an  implied  or  express  pledge 
to  vote  for  their  respective  party's  candidate  for  Senator, 
in  conformity  to  the  custoiu  which  requires  electors  to  vote 
for  the  Presidential  candidate  designated  by  their  party  con- 
vention. 

But  there  is  another  amendment  which  time  has  also 
demonstrated  to  be  a  necessity.  Public  sentiment  has  crjs- 
talized  in  its  favor  wherever  the  subject  has  been  discussed. 
The  v^elfare  of  the  republic  requires  its  adoption.  The  pro- 
vision which  vests  the  appointment  of  postmasters  in  the 
President  and  heads  of   departments,  according  as  Congress 


152 

may  direct  the  classification,  was  doubtless  a  suitable  and 
proper  one  when  the  Constitution  was  adopted.  The  num- 
ber of  postmasters  was  then  a  fevi  hundred.  It  was  thought 
then  that  the  President,  or  the  Postmaster-General,  in  one  of 
whom  all  these  appointments  were  vested,  according  to  the 
classification  by  Congress,  would  make  inquiry  and  be  in- 
formed as  to  the  fitness  of  the  appointee — in  short,  that  they 
wotld  really  be  the  appointing  power, 

Now  that  the  number  of  postmasters  approximates  75,000, 
this  is  entirely  impracticable.  Counting  300  working  days 
per  year,  and  six  hours  per  day  given  entirely  and  solely  to 
appointments,  with  an  average  of  only  fifteen  minutes  con- 
sideration to  each  each  case,  the  four  years  of  the  Postmaster- 
General  would  expire  before  29,000  appointments  v\ere  made, 
or  two-fifths  of  the  postmasters;  this,  too,  with  a  total  neg- 
lect of  all  the  other  and  more  important  duties  of  that  office, 
unless  outside  of  official  hours.  The  appointing  is  in  fact 
done  by  a  power  not  recognized  as  possessing  the  right  to 
appoint,  and  on  whom  it  would  not  have  been  cooferred  in 
1787  if  the  suggestion  had  then  been  made.  Nor  could  sucn 
provision  be  placed  in  the  Constitution  if  it  were  attempted 
to-day. 

We  have  thus,  in  fact,  an  army  of  75,000  men  appointed 
to  office  illegally,  in  a  mode  not  provided  by  the  Constitu- 
tion, and  which  could  not  be  placed  in  the  Constitution  to- 
day by  the  people's  will.  The  appointment  of  this  array  of 
officeholders  is  as  to  the  Presidential  postmasters  practically 
vested  in  the  Senators  fron  the  State,  and  of  the  lesser  post- 
masters in  the  member  of  Congress  for  the  district,  when 
these  are  of  the  same  political  party  with  the  President  or  in- 
fluential with  him.  When  these  legislative  officers  are  of  the 
opposite  political  party,  or  not  personally  in  favor  with  the 
President,  the  appointment  is  virtually  .vested  in  local  party 
leaders,  who  act  without  the  responsibility  and  publicity  of 
office. 


153 

Aside  from  the  fact  that  such  modes  of  appointment  are 
unconstitutional  and  illegal,  and  that  as  matters  stand  it  is 
impossible  for  the  mode  to  be  cnanged,  since  neither  President 
nor  Postmaster-General  can  possibly  become  acquainted  with 
the  fitness  and  character  of  such  a  host  of  appointees,  there 
are  many  other  objections  to  the  system  in  force  as  to  the  ap- 
pointment of  postmasters,  among  which  may  be  named  as  the 
most  potent  the  following: 

1.  It  gives  the  executive  an  overshado'-ving  influence  with 
the  legislative  department.  This  is  always  dangerous  in  a 
free  government.  As  it  is  recognized  that  the  Senator  or 
Congressman,  as  the  case  may  be,  is  the  real  appointing 
agency,  subject  to  the  President's  option  to  place  the  exercise 
of  such  power  in  some  party  leader,  every  candidate  for  an 
appointment  is  so  much  pressure  brought  to  bear  upon  the 
Senator  or  Congresraan  that  he  shall  conform  his  views  to  the 
President's  upon  leading  questions.  Our  Constitution,  framed 
under  ideas  prevalent  over  one  hundred  years  ago,  gave  the 
executive  what  has  heretofore  proven  undue  weight  and  in- 
fluence in  the  government.  He  is  in  fact  an  elective  king, 
for  a  term  of  years,  with  an  authority  exceeding  that  of  any 
crowned  head  in  Europe,  except  the  Czar  of  all  the  Russians. 
But  this  additional  influence,  not  contemplated  by  the  Con- 
stitution, makes  his  authority  and  influence  overv\ helming. 

It  is  but  recent  history  that  the  President  declared  his  wish 
and  intention  that  a  certain  important  financial  matter  nearly 
affecting  the  people  at  large  should  pass  Congress.  There 
was  no  secret  made  that  Senators  and  Congressmen  not  sup- 
porting the  executive  view  would  find  no  favor  at  the  White 
House.  It  is  also  generally  belived  that  the  pressure  of  ap- 
plicants for  office,  and  their  friends,  was  so  great  upon  Sena- 
tors and  Representatives  that  many  of  them  deserted  their  de- 
clared, and  often  announced  convictions  of  a  lifetime,  that 
they  might  receive  executive  approval  of  the  appointment 
which  they  wished  to  make  in  behalf  of  their  personal  or  party 


154 

friends,  according  to  customary  usage,  and  as  a  part  of  the 
perquisites  of  their  legislative  offices.  It  is  no  secret  that 
this  was  the  most  potent  influence  in  carrying  the  measure 
through  Congress.  Without  this  Presidential  influence,  can"it 
be  doubted  that  the  measure  would  have  failed?  AVhat  was 
then  so  easily  done  can  be  done  again  and  again  on  impjrtant 
occasions,  until  Congress  shall  be  little  more  than  the  beds  of 
justice  of  the  old  French  Parliaments,  which  met  simply  to 
register  the  decrees  of  the  sovereign. 

2.  The  system  practically  in  force  is  injurious  to  the  legis- 
lative department  itself,  which  should  not  be  invested  with 
the  appointments.  It  often  leads  to  "trades"  and  combina- 
tions for  the  appointment  of  individuals  as  postmasters,  on 
account  of  their  influence  instead  of  their  fitness  and  accept- 
ability to  the  public.  In  this  way,  not  infrequently,  nomi- 
nations and  elections  are  secured.  As  the  "patronage"  is 
yearl}^  increasing,  with  the  value  and  number  of  postmaster- 
ships,  this  source  of  public  forruption  -^ill  grow. 

It  is  no  answer  to  say  that  many  Senators  and  Congress- 
men— let  it  be  said  if  you  will,  a  pery  large  majority  of 
them — do  not  bestow  these  appointments  with  any  view  to 
reward  past  services  or  secure  future  support,  but  with  an 
eye  single  to  the  public  good.  Still  the  Constitution  is  per- 
verted by  the  bestowal,  in  practice,  of  any  part  of  the  ap- 
pointing po\;^er  upon  members  of  the  legislative  department. 
That  some  of  them  abuse  it,  and  that  the  SN'stem  affords,  nay 
invites,  misuse,  is  a  condemnation  of  it.  The  only  test  of  a 
postmaster's  appointment  should  be  fitness  and  acceptability  to 
the  public  of  the  locality  he  is  to  serve.  The  best  judges  of 
those  qualifications  are  the  people  themselves,  expressing 
their  opinions  and  wishes  in  the  matter  as  collected  from  the 
ballot  box. 

P>esides,  it  interferes  with  the  discharge  of  their  proper 
functions  that  legislators  should  be  practically  thus  invested 
with  the  appointing   power,  and   called   upon  to  decide  upon 


155 

the  advantages  of  this  or  that  appointment.  Then,  too,  as 
already  stated,  it  destroys  the  independence  of  the  legislative 
department  by  making  it  subservient  to  the  executive,  in 
order  to  avoid  the  veto  which  the  latter  can  place  upon  a 
senator's  or  representative's  appointments  and  thus  destroy 
all  chances  of  renomination.  The  best  men  in  both  branches 
of  Congress  would  be  g'ad  to  be  relieved  of  this  thraldom, 
and  to  be  relegated  to  their  constitutional  duty  of  legislating 
for  the  best  good  of  the  people,  unswayed  by  outside  and  per- 
sonal considerations. 

3.  From  the  standpoint  of  the  people,  the  present  system 
is  equally  injurious.  It  is  educating  a  host  of  men  to  look 
not  to  the  people  themselves  as  the  source  of  all  power  and 
authority,  but  to  regard  the  appointing  power  as  something 
beyond  and  above  the  people.  It  is  creating  a  mass  of  cour- 
tiers and  political  traders,  who  rely  for  appointment  not  upon 
fitoess  or  public  approval,  but  upon  the  "pull"  they  may  have 
on  the  virtual  appointing  power — the  Senator  or  Representa- 
tive whom  they  have  aided  to  bring  into  office  or  to  whom 
they  have  advanced  money,  either  bona  fide,  or  sometimes, 
it  may  be,  under  the  guise  of  subscription  to  the  campaign 
fund.  The  opportunity  which  corruption  is  afforded  is  great. 
Let  us  hope  it  is  not  often  used. 

These  being  some  of  the  evils,  and  they  are  great  ones 
— which  will  assuredly  become  greater — what  is  the  rem- 
edy? There  is  but  one.  It  is  the  only  one  which  free- 
men have  ever  found  with  which  to  breai:  the  force  of  execu- 
tive tyranny  or  prevent  corruption  in  the  appointing  power. 
That  is  to  resume  the  power  themselves,  and  to  select  their 
servants  at  the  ballot  box. 

This  would  not  only  remove  the  evils  above  indicated,  and 
others,  but  would  have  the  most  important  results. 

1.  In  the  first  place  a  presidential  election  is  now  a  strain 
upon  the  whole  country.  The  postmasters  and  other  officials 
connected  with  the  postal  service  number  one  hundred  thou- 


156 

sand.  These,  with  their  families  and  others  closely  allied  to 
them,  form  a  vast  army  of  a  half  million  of  people  who  are 
dependent  upon  the  success  cf  a  Presidential  candidate. 
Doable  as  many  more  expect  appointments  if  the  other  side 
shall  win.  If  each  postmaster  were  elected  by  the  people  of 
the  locality,  this  would  be  no  longer  the  case.  Whether  post- 
masters should  be  selected  at  the  ballot  box  by  personal  pre- 
ferences or  on  party  lines,  still  the  wishes  of  that  particular 
locality  would  succeed,  irrespective  of  the  success  of  any  par- 
ticular candidate  for  the  Presidency,  This  would  remove  one 
of  the  great  inciting  causes  of  a  contiict,  which,  exciting 
enough  in  any  view,  has  been  so  aggravated  as  to  have  caused 
a  civil   war  in  1860  and  nearly  caused  its  repetition  in  lf^76. 

2.  The  change  would  relieve  the  President  of  a  personal 
strain  from  applications  for  office  which  has  contributed  to, 
if  not  directly  caused,  the  death  of  more  than  one  incumbent 
of  that  high  office  and  crippled  the  usefulness  of  others.  It 
would  give  the  executive,  as  well  as  the  legislative,  depart- 
ment time  to  devote  to  proper  and  appropriate  duties. 

3.  The  change  would  check  the  growing  tendency  to  cen- 
tralization wnich  threatens  to  absorb  local  self  government  in 
the  centripetal  attraction  of  public  office. 

4.  This  would  deprive  the  opponents  of  a  governmental 
telegraphic  and  telephonic  service  of  their  only  valid  argu- 
ment against  it,  which  is  that  it  would  increase  the  number 
of  Federal  appointees.  The  number  of  postoffices  might  be 
largely  increased  with  a  telephone  at  each  office,  exce;.it  at 
one  or  two  large  offices  in  each  State,  which  might  be  tele- 
graphic for  the  purpose  of  relaying  and  forwarding  long-dis- 
tance messages.  With  low  governmental,  rates  this  change 
would  more  than  double  the  benefits  and  usefulness  to  the 
people  of  the  postoffice  department.  With  postmasters  elected 
by  the  people,  there  can  be  no  longer  objections  urged  against 
increasing  the  number  of  Federal  appointees  from  fear  of  au- 
gumenting  the  pressure  for  patronage,    which  now  threatens 


157 

to  paralyze  both  the  executive  aud  legislative  departments  of 
the  government. 

Nor  are  there  any  practical  difficulties  as  to  the  manner  of 
election.  The  territory  around  each  postoffice  could  be  di- 
vided off  into  a  precinct  by  a  board  provided  for  the  purpose 
by  statute,  with  provision  for  sub-divisions  and  changes  by  the 
department  in  a  manner  which  would  guard  against  abuse. 
Each  four  years  when  a  President  is  elected,  a  postmaster  for 
each  of  these  postoffice  precincts  could  be  chosen,  exactly  in 
the  same  manner  that  a  constable  is  elected  in  each  township 
when  the  Governor  and  other  officers  are  voted  for  by  the 
State  at  large.  This  would  not  add  perceptibly  to  the  ex- 
pense of  elections. 

The  postmasters  thus  elected  would  give  bond  and  be  sub- 
ject to  removal  for  cause,  just  as  the  appointed  officials  are 
now,  aud  \\ould  be  in  all  respects  subject  to  the  same  regula- 
tions as  now,  except  that  when  removed  for  cause  the  cause 
might  be  tried  at  the  next  Federal  court.  If  the  charges 
were  not  sustained  the  officer  would  be  reinstated.  In  case 
the  charge  were  proven,  a  new  postmaster  would  be  elected 
for  the  unexpired  term  at  the  next  Congressional  election,  if 
it  should  not  be  a  Presidential  election  year. 

The  strongest  objection  against  the  election  of  postmasters 
by  the  people  is,  that  it  was  not  provided  for  in  the  Constitu- 
tion of  1787.  But  neither  was  the  present  system  of  virtual 
appointment  by  Senators  and  representatives  provided  for  by 
that  Constitution,  It  is  a  fungus  growth  and  dangerous  to 
the  health  of  the  republic;  it  should  be  removed. 

It  is  said  that  this  world  of  ours  has  three  motions — one 
its  diurnal  revolution  on  its  own  axis,  another  its  wide  an- 
nual sweep  around  the  sun,  the  third  as  it  is  drawn  along 
with  the  whob  planetary  system  in  the  rush  of  the  sun  to- 
wards the  distant  point  in  the  heavens  to  which  it  has  been 
flying  with  more  than  the  velocity  of  a  cannon-ball  since  cre- 
tion's  dawn.     The  three  motions  combined  describe  a  spiral. 


158 

As  the  earth  thus  spins  dov\n  the  spiral  stairway  of  the  stars, 
the  lapse  of  every  t\vent3'^-four  hours  sees  us  removed  three 
millions  of  miles  from  the  point  in  space  occupied  by  us  at  the 
same  hour  the  day  before.  With  the  whole  world  thus  earn- 
estly "on  the  move,"  can  it  be  seriously  contended  that  the 
Constitution  alone  should  stand  still?  That  it  had  its  imper- 
fections has  been  shown.  The  generation  that  made  it  was 
wise  enough  to  amend  it,  and  succeeding  generations  have 
done  the  same.  Now  we  are  face  to  face  with  other  imper- 
fections which  have  come  viith  the  lapse  of  time — the  man- 
ner of  electing  Senators,  and  the  immense  growth  of,  and 
perverted  methods  of  dispensing,  patronage  or  appointment 
to  office.  Is  not  this  generation  wise  enough  and  strong 
enough  to  grapple  with  these  questions? 

Whatever  may  be  said  in  favor  of  civil  service  as  applica- 
ble to  clerkships  and  other  subordinate  positions,  it  is  very 
clear  that  life  appointment  under  civil  service  rules  is  not 
desirable  for  postmasters  who  are  thrown  directly  in  contact 
with  the  people,  and  whose  acceptability  to  the  people  they 
serve  is  cf  the  first  importance.  Nor  is  favor  in  the  eyes  of 
a  congressman,  ambitious  perhaps  of  further  honors  or  mind- 
ful of  past  favors,  a  proper  basis  for  appointment.  If  the 
people  are  wise  enough  to  elect  presidents  and  congressmen, 
governors  and  judges,  why  can  they  not  be  trusted  to  select 
senators  and  postmasters? 

When  the  Constitution  of  1787  was  framed,  there  was  a 
large  element  cautious  of  committing  much  power  to  the  peo- 
ple. It  wsis  an  unknown  and  untried  experiment.  Senators 
were  to  be  chosen  by  the  Legislatures.  It  was  feared  to  trust 
their  election  to  the  masses,  but  time  has  demonstrated  that 
the  latter  would  have  been  the  better  plan.  Judges  were  to 
be  appointed  for  life  by  the  president.  Yet  hardly  a  State 
Constitution  retains  now  such  a  feature.  The  few  hundred 
postmasters  vsere  to  be  appointed  by  the  President  or  the 
Postmaster-General.     Now  that  they  number  nearly  three- 


159 

fourths  of  a  hundred  thousand,  and  are  increasing  in  number 
at  the  rate  of  three  to  five  thousand  per  annum,  their  appoint- 
ment is  practically  changed  and  is  made  by  menrbers  of  Con- 
gress and  Senators  or  unoiScial  political  leaders.  A  century 
of  experience  in  self-government  and  the  spread  of  education 
among  the  masses  hap^e  been  of  little  value,  if -they  have  not 
brought  proof  of,  and  increased  conndence  in,  the  capacity 
of  the  people  to  select  their  own  officers.  The  development 
of  republicaa  government  must  take  that  direction.  The 
continued  bestowal  of  so  large  a  number  of  offices,  increasing 
steadily  in  number  and  value,  by  patronage,  can  only  result 
in  increasing  and  widespread  corruption.  Trust  the  people. 
While  they  remain  honest  and  intelligent  the}''  are  the  proper 
and  only  safe  depositories  of  the  power  of  selecting  their  Ovvn 
servants.  Whenever  the  day  shall  come  when  they  shall 
cease  to  discern  their  own  interest  or  shall  become  corrupt, 
a  stronger  form  of  government,  not  resting  on  the  people's 
"v^ill,  may  be  found,  but  not  a  purer  one. 

The  w;riter  is  one  of  those  who  steadily  believe  in  the  ca- 
pacity of  the  people  for  self-government,  and  that  progress 
in  the  direction  of  a  purer,  better  government,  a  government 
which  shall  be  for  the  people,  is  to  be  found  only  in  the  ex- 
tension of  a  government,  which  is  by  and  for  the  people.  In 
the  curtailment  of  patronage,  which  is  a  survival  of  govern- 
ment b}''  officials,  and  the  selection  of  postmasters  and  all 
other  officers  as  far  as  possible  by  the  people,  is  to  be  found 
the  only  solution  of  many  of  the  difficulties  and  evils  which 
now  surround  us.  This  will  not  be  the  "conclusion  of  the 
whole  matter,"  b&t  it  will  be  a  long  step  in  the  right  direc- 
toin.  Other  difficulties  will  arise  with  our  development  in 
wealth  and  population.  Wisdom  will  be  found  to  solve  them 
as  they  press  on  us. 

"  There  are  great  truths  that  pitch  their  shining  tents 
Outside  our  walls  ;  and  though  but  dimly  seen 
In  the  gray  dawn,  they  will  be  manifest 
When  the  light  widens  into  perfect  day." 


CLAIMS  OF  LONG  DESCENT." 


"We  are  all  the  Lineal  Descendants  of  Kings  and  Queens. 


Reprinted  by  Special  Permission  from  the  "North  American  Review," 

December,  1894. 


"  Honors  best  thrive 
"When  rather  from  our  acts  we  them  derive 
"Than  our  foregoers. "— All 's  Well,  Act  II,  Sc.  3. 

To  any  who  does  not  consider  the  vanity  inherent  in  hu- 
man nature,  it  is  astonishing  to  note  the  number  of  people, 
even  in  this  country,  where  every  ixan  is  a  sovereign,  who 
lay  claim  to  royal  descent.  The  third  edition  of  "Americans 
of  Royal  Descent"  has  recently  been  issued,  with  900  pages 
and  several  additional  peaigrees.  Not  so  very  long  since  a 
Richmond  (Va.)  paper  had  several  columns  giving  in  great 
and  edifying  detail  the  pedigrees  of  divers  and  sundry  fami- 
lies in  that  State  who  ran  back  their  genealogical  line  to  some 
king  of  England.  And  farther  north  the  nouveaux  riches^ 
overwhelmed  with  all  the  good  things  of  the  present,  and 
feeling  secure  for  the  future,  not  infrequently  proceed  to  pro- 
vide for  the  past  also  by  purchasing  themselves  a  comfortable 
pedigree  with  some  king  as  tenni7ius  a  quo.  These  genea- 
logical acquisitions,  like  the  similar  traditional  claims  of  the 
F.  P.  V.'s  in  the  Old  Dominion,  are  deemed  by  the  public 
exceedingly  doubtful.  Tennyson  (himself  of  undoubted  royal 
ancestrj"-)  has  said: 

"  From  yon  blue  sky  above  us  bent 
The  grand  old  gardener  and  his  wife 
Smile  at  the  claims  of  long  descent." 


101 

"While  claims  of  royal  origio  could  be  of  no  benefit  to  the 
claimants  if  proven,  and  certainly  could  be  of  small  credit, 
seeing  that  the  average  royalty  has  been  a  rather  disreputa- 
ble character,  there  is  another  side  to  this  question,  which 
has  been  little  considered.  And  that  is  that  these  claims, 
notwithstanding  the  public  incredulity,  are  probably  all  true. 
Let  us  consider.  AVilliara  the  Conqueror  ascended  the  throne 
of  Eng'land  A.  D.  1066.  Allowing  thirtv-three  vears  as  a 
generation,  there  have  been  twenty-six  generations  since, 
counting  his  children  then  living  as  the  first  generation. 
Many  people  leave  several  children,  others  leave  more.  It 
is  certainly  not  an  immoderate  calculation  to  average  each 
descendant  as  leaving  three  children.  For  if  each  descend- 
ant with  his  wife  left  only  two  children,  the  population  would 
have  stood  still;  whereas  the  less  than  a  million  inhabitants 
of  the  British  Isles  of  that  day  have  grown  to  be  nearly  forty 
millions  there,  and  seventy  millions  on  this  side  of  the  water. 
William  the  Conqueror  had  four  sons  and  six  daughters. 
Averaging  each  of  these  as  having  three  children,  with  the 
same  average  for  ea.ch  of  their  descendants  down  to  the  pre- 
sent, and  the  ten  children  of  William  in  the  present  or 
twenty  fifth  generation,  by  a  simple  arithmetical  calculation, 
would  have  2,824,295,314,810  descendants  now  living  in  the 
British  Isles,  in  America,  in  the  colonies  or  wherever  men  of 
British  descent  are  to  be  found.  As  this  is  fully  25,000  times 
as  many  as  there  are  people  of  British  descent  on  the  globe, 
there  must  be  an  error  in  the  above  calculation.  There  are 
two.  First:  while  an  average  of  two  children  to  each  de- 
scendant is  too  small,  since  that  average  would  have  kept  the 
population  stationary,  an  average  of  three  is  too  high,  as  that 
is  an  increase  of  fifty  per  cent,  every  thirty  years,  an  average 
which  lew  countries  other  than  the  United  States  could  show. 
The  second  error  is  that  intermarriage  among  descendants 
must  be  allowed  for.  Say  that  owing  to  these  errors  the  result 
of  the  calculation  is  25,000  times  too  much,  it  would  still  re- 
11 


162 

suit  that  every  man  of  the  English-speaking  race  is  descended 
from  the  Conqueror.  Roduce  it  as  much  more  as  you  like, 
and  the  chances  are  yet  strong  that  any  ^iven  man  of  your 
acquaintance,  as  well  as  yourself,  is  probably  a  descendant  of 
the  victor  of  Hastings.  Carry  the  propositus — as  lawyers 
call  him — back  a  few  generations  further,  say  to  Alfred  the 
Great  or  Charlemagne,  and  the  chances  are  almost  inevitable 
that  any  given  individual  is  the'r  descendant.  Indeed,  in  the 
light  of  arithmetic  it  may  be  doubted  if  to-day  there  is  any 
person  speaking  French,  German,  or  English,  who  is  not  a 
lineal  descendant  of  Charlemagne.  It  is  at  least  a  mathe- 
matical certainty  that  to-day  there  lives  no  one  in  any  civil- 
ized country  who  is  not  a  lineal  descendant  of  some  king  or 
other  eminent  historical  character.  So  true  is  it  that  he  has 
made  "all  people  of  one  blood,"  and  so  puerile  are  claims  of 
anyone  whatever  to  superior  descent  over  his  neighbor. 

The  six  wives  of  Henry  YIII  of  England  came  from  three 
different  countries  and  different  ranks,  but  each,  as  tvell  as 
Henry  himself,  was  descended  from  Edward  III,  The  fact 
is  commemorated  on  the  windows  of  the  chapel  of  the  Royal 
Palace  at  Hampton  Court,  as  will  be  remembered  by  all  who 
have  been  there.  In  London,  too,  there  is  to-day  a  butcher 
(and  many  others  of  like  rank)  who  can  prove  unbroken  lineal 
descent  in  a  legitimate  line  from  a  king  of  England. 

There  is  another  view,  too,  of  this  matter.  While  taking 
any  historical  character  as  a  terminus  a  quo,  his  descendants 
widen  out  in  every  generation  like  a  pyramid  from  its  apex; 
yet  taking  any  given  person,  yourself  for  instance,  and  trac- 
ing back  his  ancestors  in  like  manner,  they  double  in  each  as- 
cending geneiaticn,  till  in  a  few  hundred  years  they  become 
"like  sands  on  the  seashore  for  multitude."  The  rirst  error 
in  the  above  calculation  as  to  descendants  is  eliminated.  The 
ancestors  in  each  ascending  generation  must  be  exactly  dou- 
ble the  number  of  those  in  the  generation  below  it.  The 
only  error  to  be  allowed  for  is  the  duplication  of  ancestors 


163 

by  intermarriage  of  relatives,  till  finally,  by  the  operation  of 
this  fact  in  the  remote  past,  the  whole  haman  race  is  nar- 
rowed to  one  pair  for  its  origin.  But  taking  each  individual 
living  to-day  as  the  apex  of  an  inverted  pyramid,  with  his 
ancestors  doubling  with  each  ascending  generation,  those  an- 
cestors become  countless.  Putting  the  population  of  the 
British  Isles  in  William  the  Conqueror's  day  at  l,OuO,000,  it 
may  be  doubted  if  any  English-speaking  man  breathes  to-day 
who  is  not  descended,  not  only  from  William  himself,  but 
from  each  other  of  the  great  majority  of  the  whole  popula- 
tion of  that  da}^.  It  is  true  families  die  out;  but  if  they  sur- 
vive and  increase  to  the  third  and  fourth  generations,  with 
each  successive  generation  decrease  greatly  of  course  the 
chances  of  all  the  branches  dying  out.  Even  where  descend- 
ants apparently  fail  in  the  direct  line  there  always  is  a  chance 
that  descendants  exist  who  have  become  obscure  and  been 
lost  sight  of,  or  there  may  be  descendants  through  illegitimate 
and  hence  unrecognized  descendants.  Every  man  may  safe- 
ly count  on  the  fact  that  among  his  innumerable  ancestors 
are  not  only  kings,  and  other  historical  characters,  but  also 
as  certainly  tramps  and  criminals  of  every  description.  For- 
tunately, criminals  do  not,  as  a  rule,  "live  out  half  their 
days,"  and  their  line  is  more  apt  to  become  extinct  in  the 
first  or  second  generation  succeeding,  yet  he  who 

"  The  ancestral  line  would  ascend 
Will  find  it  waxed  at  the  otjier  end 
With  some  lineal  progenitor." 

True,  indeed,  it  is  that  every,  man  is  descended  not  only 
from  heroes,  kings,  princes,  poets,  but  also  as  certainly  from 
murderers  and  thieves. 

The  doctrine  of  heredity  has  some  force  in  it,  but  much 
that  is  called  heredity  is  simply  the  effect  of  environment. 
A  man  may  be  a  thief  or  tbe  opposite  because  his  father  was 
such,  but  it  is  much  more  likely  that  his  bent  toward  larceny 


164 

or  good  v^orks  is  due  rather  to  his  surroundings  and  early  in- 
fluences than  to  qualities  transmitted  in  the  blood.  Inas- 
much as  the  grandchild  is  only  one-fonrth,  his  son  one-eighth, 
his  son  one-sixteenth,  and  his  son  one-thirty-second  (and  so 
on  in  geometrical  ratio)  the  possessor  of  inherited  qualities 
from  any  given  ancestor,  the  effect  of  descent  speedily  min- 
imizes Nothing  is  more  absurd  and  unfounded  than  the 
claims  of  an  aristocracy  based  upon  the  supposed  continued 
transmission,  of  virtues  and  talents,  as  is  the  British  House 
of  Lords,  or  of  a  monarchy,  all  of  which  have  been  founded 
by  some  great  chieftain  of  his  da\\  But  more  absurd  still  is 
the  spectacle  of  any  one  individual  seeking  to  attract  imputed 
honor  to  himself  by  asserting  claims  to  descent  from  one  who 
held  some  post  of  honor  centuries  ago.  If  the  chain  of  de- 
scent can  be  made  out,  countless  others  are  equally  as  cer- 
tainly descended  from  the  same  origin,  and  furthermore  the 
claimant  is  equally  as  certainly  descended  from  numerous  dis- 
reputable characters,  whose  qualities  he  has  the  same  chance 
to  have  inherited  with  those  of  his  more  conspicuous  and  hon- 
ored ancestors.  No  conception  is  more  false  in  fact  than  the 
current  conceit  that  any  man  is  descended  from  a  single  line 
of  ancestors.  The  lines  of  descent  approach  infinity.  And 
nothing  is  more  certainly  destroyed  by  the  inexorable  logic 
of  figures  than  any  assumed  merit  based  upon  "claims  of  long 
descent."  ■  "We  are  not  only  all  descended  from  Adam  and 
Eve,  but  probably  every  German,  Frenchman,  Spaniard, 
Italian,  and  Anglo-Saxon  is  likewise  a  descendant  of  Julius 
Csesar  and  Charlemagne.  It  is  true  royal  dynasties  have 
died  out,  but  no  account  is  taken  of  illegitimate  descendants, 
usually  numerous,  in  such  cases.  Btsides,  luxury  and  vfar 
decimate  dynasties,  and  intermarriages  reduce  the  number  of 
descending  lines.  Ca3sar  has  no  legal  heir  in  the  direct  line, 
but  according  to  what  Seutonius  and  Plutarch  tell  us  of  him 
he  doubtless  left  man}'-  descendants.  Famine  and  war  have 
destroyed  whole  populations,  but   when  after  a  few  genera- 


165 

tions  a  man's  descendants  have  multiplied  into  many  lines, 
no  disaster  could  within  apy  reasonable  probability  cut  off  all 
his  descendants.     The  modern  ''claimants"  have  no  monopo- 
ly.    The  begga*"  next  door  is  probably  a  genuine  lineal  de 
scendant  of  Charlemagne,     As  Pope  says: 

"  What  can  ennoble  fools  or  slaves  or  cowards? 
Not  all  the  blood  of  all  the  Howards." 

Or  as  Sancho  I'anza  hath  it  : 

"  Every  man  is  the  son  of  his  own  works." 

Every  man  leaving  descendants  who  survive  beyond  the  third 
or  fourth  generation  will,  in- all  probability,  io  a  few  centu- 
ries, be  one  of  the  ancestors  of  every  maa  of  his  nationality 
then  living  on  the  globe.  But  if  there  is  any  element  of  un- 
certainty as  to  a  man's  descendants  there  is  none  as  to  his 
ancestors.  The  ''past  at  least  is  secure."  Every  man  has 
necessarily  had  millions  of  ancestors,  and  equally  of  necessity 
has  "royal  blood  in  his  veins." 


THE  TRUE  REMEDY  FOR  LYNCH  LAW. 


In  American  Law  Review,  December,  1894. 


In  the  United  States,  by  the  State  official  reports  for  1892 
the  last  which  have  been  compiled,  there  'were  6,791  homi- 
cides. In  that  year,  for  homicides  and  all  other  capital 
offences  (number  of  latter  not  given),  there  were  107  execu- 
tions b}'-  process  of  law  and  236  by  lynching.  Taking  the  re- 
ports for  ten  years,  1883 — 1892,  the  average  has  been  more 
than  two  executed  by  lynching  for  one  executed  by  law. 
Notwithstanding  the  many  new  laws  passed  against  lynch- 
ings,  and  the  efforts  of  ttie  various  executives  and  the  fuimi- 
nations  of  the  press  against  ''mob-law,"  the  ratio  of  lynch- 
ings  to  the  number  of  legal  executions  shows  a  decided  and 
steady  increase.  New  laws  to  repress  lynching  have  had, 
and  can  have,  no  effect.  It  has  always  been  murder  to  take 
the  life,  even  of  a  criminal,  without  warrant  of  law,  and  no 
new  law  can  make  it  any  greater  offence.  The  remedy  must 
be  sought  in  this  case  just  as  a  physician,  or  a  machinist, 
seeks  the  remedy  in  any  matter  intrusted  to  him.  The  £rst 
step  is  to  ascertain  the  cause  of  the  trouble.  That  being 
known,  the  remedy  can  be  intelligently  applied. 

The  cause  of  lynching  is  not  a  spirit  of  lawlessness.  As  a 
rule,  the  men  who  participate  in  it  wish  ardently  to  enforce 
justice.  The  truth  is,  society  feels  that  it  must  be  protected 
against  crime.  Whenever  society  has  lost  confidence  in  the 
promptness  and  certainty  of  punishment  by  the  courts,  then 
whenever  an  offence  sufficiently  flagrant  is  committed,  society 
will  protect  itself  by  a  lynching.  There  is  the  whole  story. 
It  is  the  caae  of  the  vigilance  committees  of  San  Francisco 


167 

over  again.  They  cleared  out  the  murderers  and  felons  from 
that  city  when  the  law  showed  itself  ineffectual  for  their  pun- 
ishment. The  number  of  homicides  in  1892  being  6,791,  the 
other  capital  felonies  committed  would  doubtless  raise  the 
total  to  10,000  or  over.  That  for  this  number  of  offences 
only  107  were  legally  convicted  and  executed  is  significant. 
Its  significance  is  deepened  by  the  fact  that  society,  despair- 
ing of  a  due  execution  of  the  law,  hung  236  others  without 
process  of  law.  How  many  others  of  the  10,000  were  guilty 
and  yet  escaped  just  and  merited  punishment,  both  by  law 
and  lynching,  can  never  be  known.  It  is  safe  to  sa}'^  that  it 
was  no  inconsiderable  number. 

The  remedy  for  lynching  is  to  restore  the  confidence  of  so- 
ciety-in  the  just,  pron:pt  and  eflicient  trial  and  punishment 
of  criminals.  Courts  are  very  expensive  to  the  people.  Yet 
in  most  cases  if  a  criminal  can  procure  the  services  of  able 
and  skillful  counsel,  the  advantages  granted  to  the  prisoner 
in  a  trial  for  a  capital  offence  are  such  that  a  verdict  for  the 
State  is  almost  impossible,  no  matter  how  flagrant  the  offence. 
Or  if  a  verdict  is  had,  so  numerous  are  the  technicalities  that 
it  is  very  difficult  for  the  trial  judge  to  so  conduct  the  trial 
that  a  reversal  will  not  be  had  on  appeal.  The  trial  of  a 
capital  case  when  the  prisoner  is  guilty,  generally,  is  not  so 
much  an  investigation  of  the  truth  of  the  real  matter  at  issue 
as  a  display  of  legal  skill  on  the  part  of  counsel,  which  is 
usually  sufficient  to  prevent  the  execution  of  the  just  sentence 
of  the  law. 

Let  the  trial  be  speedy,  and  the  punishment,  if  there  is  a 
conviction,  be  prompt  and  certain.  Eemove  the  technicali- 
ties which  render  so  many  trials  a  travesty.  Abolish  the  de- 
lays and  continuances  which  baffle  justice,  and  which  make 
punishment  at  the  end  of  a  long  chase,  take  on  the  appear- 
ance of  revenge  rather  than  justice.  Do  these  things,  and 
not  only  lynchiugs  will  disappear,  but  the  grand  annual  total 
oi  over  10,000  capital  offences  will  shrink  wonderfully. 


168 

Take  an  ordinary  trial  for  murder.  Tlie  first  step  is  de- 
lay. The  second  step  is  delay,  and  then  as  many  more  de- 
lays as  possible.  The  clearer  the  gailt  of  the  defendant,  the 
more  zealous  his  counsel  is,  of  course,  for  all  the  dela}''  he  can 
get.  Witnesses  re  ay  die  or  leave  the  State,  or  their  merao- 
r}'^  of  the  transaction  becomes  less  exact  and  the  puolic  senti- 
ment in  favor  of  the  execution  of  the  law  becomes  hojjeless 
and  dulled.  The  remedy  for  this  is  to  require  the  trial  to  be 
at  the  term  at  which  the  indictment  is  found.  Or,  if  for  any 
reason,  a  continuance  is  necessary,  the  term  of  the  court 
should  be  adjourned,  after  the  transaction  of  other  business, 
to  a  day  named  in  the  continuance  which  shall  be  the  earliest 
day  practicable. 

Then  we  come  to  the  trial.  There  every  possible  advan- 
tage is  given  to  the  defendant  and  every  possible  disadvan- 
tage is  imposed  upon  the  prosecution.  Theprisoner  in  mostof 
the  States  is  allowed  many  more  challenges  than  the  State. 
In  North  Carolina  he  is  allowed  tvventy-three  while  the  State 
has  only  four.  The  prisoners  guilt  must  be  shown  beyond 
a  reasonable  doubt.  Twelve  jurors  must  concur  in  finding 
him  guilty.  He  has  the  great  advantage  that  erroneous  rul- 
ing of  the  presiding  judge  in  his  favor  cannot  be  corrected; 
w^hile  a  single  erroneous  ruling  against  him  vitiates  the  whole 
proceeding.  The  sympathy  of  the  jury  in  favor  of  a  fellow 
being  in  jeopardy  of  his  life  is  easily  appealed  to  and  readily 
evoked.  Technicalities  surround  the  trial  from  start  to  finish 
and  are  quickly  availed  of  by  skillful  counsel,  if  one  is  vio- 
lated. No  wonder  that  under  these  circumstances  co.iviction 
and  punishment  for  a  capital  offence  are  almost  impossible 
when  the  prisoner  or  his  friends  can  procure  able  counsel, 
and  that  society,  feeling  outraged  at  the  useless  expenditure 
for  its  courts,  so  often  executes  justice  without  the  sanction 
of  law.  In  vain  do  the  executive  and  legislative  departments 
strive  to  lessen  the  growing  evil.  As  long  as  the  judicial  de- 
partment fails,  or  is  prevented,  from  promptly  and  justly  in- 


169 

vestigating  the  charge  and  denouncing  sentence  upon  the 
guilty,  so  long  will  tbis  irregular  species  of  justice  grow  and 
abound  more  and  more.  Whether  capital  punishment  should 
be  abolished  or  not  rests  with  the  people  of  any  State,  acting 
through  their  accredited  representatives.  But  as  long  as  the 
penalty  of  death  is  prescribed  by  the  statute,  it  should  be 
borne  in  mind  that  a  trial  for  a  capital  offence  is  a  solemn, 
serious  proceeding,  which  society  has  decreed  as  necessary 
for  its  well  being  and  safety.  It  is  not  to  be  approached 
from  its  sentimental  side.  The  sole  object  should  be  the  cold 
impartial  ascertainment  of  the  facts  pertaining  to  the  charge. 
The  enormous  disadvantages  at  \^  hich  the  Slate  is  placed 
in  such  trials,  and  the  numerous  technicalities  of  which  the 
prisoner  can  avail  himself,  were  invented  by  the  humanity  of 
the  courts,  at  a  time  when  the  prisoner  was  neither  allowed 
the  benefits  of  counsel  nor  to  cross-examine  the  vutnesses 
against  him,  nor  to  have  witnesses  summoned  in  his  own  be- 
half, unless  he  could  pay  for  them.  This  state  of  things  hav- 
ing long  ceased  to  exist,  the  disadvantages  then  imposed  upon 
the  State  sho.uld  also  cease.  It  will  be  a  sufficient  protection 
for  the  innocent  to  retain  the  requirement  that  his  guilt  must 
be  shown  beyond  a  reasonable  doubt,  and  that  the  verdict  of 
guilty  can  only  be  pronounced  by  the  unanimous  verdict  of 
a  jury.  The  sympathy  of  a  jury  for  a  fellow-being  on  trial 
for  his  life  will  always  be  stronger  than  the  desire  to  vidicate 
the  outrage  upon  society,  and  such  sympathy  can  always  be 
readily  appealed  to  by  eloquent  counsel.  But  bf^yond  these 
things,  any  further  disadvantages  imposed  upon  the  State  is 
not  in  favor  of  the  innocent,  but  of  the  guilty.  Tte  number 
of  pcemptory  challenges  should  be  reduced,  and  an  equal 
number  (say,  six)  allowed  the  State  and  the  defendant. 
This  has  already  been  done  in  a  few  States:  Illinois,  New 
York,  Connecticut,  Ehode  Island,  Florida,  and  Colorado, 
while  in  Massachusetts  the  State  has  more  challenji-es  than 
the  defendant.     Where,  as  in  Xorth  Carolina,  the  State  has 


170 

only  four  peremptory  challenges,  while  the  prisoner  has  twen- 
ty-three, in  addition  to  unlimited  challenges  for  cause,  it  vir- 
tually amounts  to  the  prisoner  selecting  the  jur\'^  to  try  him- 
self. He  can  usually  get  at  least  enough  friends  on  the  jury 
to  prevent  the  requisite  unanimity.  Then  the  state  should 
be  allowed  to  except  to  erroneous  rulings  of  the  judge,  as 
well  as  the  defendant,  and  to  appeal  from  a  verdict  of  not 
guilty  obtained  by  such  rulings.  This  was  formerly  the  law 
in  North  Carolina,  and  elsewhere.  It  is,  lor  potent  reasons, 
necessary  to  return  it.  As  to  the  numerous  technicalities 
which  are  so  sure  to  be  evoked  for  the  prisoner,  the  proper 
course  is  the  one  pointed  out  in  the  resolution  adopted  at  the 
last  meeting  of  ihe  State  Bar  Association  of  Georgia,  which 
was  in  effect,  "That  on  all  appeals  in  criminal  as  well  as 
civil  cases  the  appellate  court  shall  not  grant  a  new  trial  for 
any  error  in  the  instruction  of  the  jury,  or  in  the  allowance 
or  disallowance  of  challenges,  or  in  rulings  upon  evidence  or 
in  any  other  rulings  of  the  presiding  judge,  unless  it  shall 
appear  to  the  satisfaction  of  the  appellate  court  that  such 
error  probably  and  reasonably  affected  the  result  adversely 
to  the  appealing  party."  In  a  common  sense  view  of  things 
it  is  clear  that  there  should  not  be  a  new  trial  except  in  such 
cases.  The  foUow^ing  resolutions  adopted  at  the  same  time 
are  so  much  to  the  point  that  they  are  copied  entire:  "Our 
law  is  too  technical  and  has  been  carried  too  far  on  the  sub- 
ject of  incriminating  evidence.  Any  evidence  obtained  in 
good  faith  from  tracks,  clothing,  personal  marks  or  peculiari- 
ties, papers,  weapons,  or  other  things  found  on  his  person  by 
compulsory  examinations,  made  in  good  faith  by  the  arrest- 
ing officer,  or  person  having  a  prisoner  in  custody,  or  obtained 
under  order  and  direction  of  the  court,  should,  upon  prin- 
ciples of  common  sense,  reason  and  justice,  be  allowed  to  go 
to  the  jury;  such  evidence  to  be  weighed  and  considered  for 
what  the  same  may  be  worth,  under  all  circumstances  and 
facts  of  the  case." 


171 

"In  the  administration  of  the  criminal  law  the  dead  man 
or  victim  of  the  burglaiy,  the  robbery,  the  murder,  the  rape 
or  other  crime,  ou^ht  at  least  to  be  put  on  equality  with  the 
criminal  and  the  guilty.  The  law,  and  our  forms  of  judicial 
procedure  ought  to  be  so  changed  as  to  allow  the  state  the 
same  number  of  challenges  as  the  prisoner,  and  to  move  for  a 
new  trial,  and  to  have  a  writ  of  error.  We  have  gone  too 
far  in  the  direction  of  throwing  legal  protection  around  the 
prisoner.  There  is  too  much  crime  in  the  land,  and  it  is 
greatly  to  be  feared,  that  if  we,  of  th3  legal  profession, 
search  our  own  hearts  and  consider  as  to  whether  we  have 
done  our  whole  duty  in  at  least  endeavoring  to  bring  about 
reforms  looking  to  more  speedy,  as  well  as  exact  and  just 
results  in  criminal  trials,  we  could  not  say  with  Paul,  "I  am 
quit  of  the  blood  of  all  men." 

To  which  resolution  was  added  this  timely  caution  on  the 
subject  of  lynch  law: 

"The  startling  statement  has  been  made  in  the  public  press, 
and  nowhere  denied,  that  in  many  grou[)s  of,  say  a  score,  of 
counties  in  the  United  States,  there  are  more  homicides  than 
in  all  of  Scotland,  or  in  all  of  England,  or  even  all  of  Prussia. 
Throughout  the  United  States  we  have  these  fancy  notions 
by  which,  when  a  criminal  is  on  trial,  the  judge  is  a  cipher, 
and  the  jury  is  left  in  the  dark,  whilst  the  criminal  is  the 
only  man  in  the  courthouse  who  has  any  rights  that  are 
sacred.  Our  civilization  has  gone  too  far,  and  has  overdone 
itself  in  these  matters.  We  deplore  the  lynchings  which 
occur  so  frequently,  and  are  growing  more  and  more  frequent 
throughout  the  land.  The  reason,  at  least  one  great  reason, 
why  lynchings  o'^cur  is  because  there  is  a  distrust,  and  a  con- 
stantly growing  distrust,  in  the  promptness  and  efficiency  of 
the  law.  Justice  is  one  of  the  innate  principles  of  the  human 
heart,  and  public  justice  \^  ill  assert  itself.  You  may  fill  your 
newspapers  with  proclamations,  and  crowd  your  thorough- 
fares with  the  sheriff's  officers  and  militia,  but  you  will  never 


172 

stop  lynchings  until  the  public  is  given  to  understand  that 
the  judge  and  jury  have  povver  to  exercise  sure  and  imme- 
diate justice.  In  a  thousand  ways  the  evils  herd  mentioned 
are  very  great.  The  remedy  for  them  requires  courage,  as 
■well  as  prudence,  moderation  and  wisdom;  but  like  the  evd, 
the  remedy  should  be  radical  and  complete." 

Legal  reforms  cannot  avail  without  the  cordial  support  of 
the  bar.  If  there  is  a  concurrence  among  them  in  the  views 
above  set  out  by  the  bar  association  of  Georgia,  and  in  which 
the  bar  association  of  some  other  States  have  in  effect  con- 
curred, then  confidence  w\\\  be  restored  in  the  administration 
of  justice  by  the  courts  in  capital  cases.  The  requisites  of  a 
unanimous  verdict,  and  that  guilt  must  be  shown  beyond  a  rea- 
sonable doubt,  and  the  natural  bias. of  the  jury  in  favorof  the 
prisoner,  will  give  an  innocent  man  every  just  chance  of  an  ac- 
quittal which  he  now  possesses.  The  abolition  of  the  other  bur- 
dens now  unequally  imposed  upon  the  State  in  such  trials  will 
only  have  the  effect  of  making  it  possible  to  convict  the  guilty. 
Let  these  reasonable  reforms  be  refused,  and  society  will  con 
tinue  in  flagrant  cases  to  dispense  with  judges,  juries,  and 
lawyers  in  viudicating  its  right  to  protection  against  mur- 
derers and  those  who  commit  rape.  The  purpose  of  hanging 
a  man  is  not  to  reform  him,  but  to  deter  others.  To  have 
that  effect  the  punishment  must  be  prompt  and  certain  when- 
ever guilt  is  clear  beyond  all  reasonable  doubt.  This  prin- 
ciple which  is  so  often  ignored  by  the  courts  is  the  one  which 
instinctively  actuates  lynching  mobs.  The  principle  is  in  it- 
self right  and  just,  and  courts  should  act  upon  it,  and  not 
leave  it  to  be  at  once  a  motive  and  a  plea  for  the  illegal  exe- 
cution of  justice. 


CONTENTS. 


ADDRESSES. 

1.  Where  Shall  Governing  Power  Reside? — Urdversity  Medical  College, 

Richmond,  Va. ,  29ih  April,  1897. 

2.  Right  op  Public  to  Regulate  Freight  and   Fares. —  Wake  Forest  Col- 

lege, 24th  June,  1897. 

3.  Political  Teachings  of  Christ. — Sunday  School  Convention,  Franklin- 

ton,  N.  C,  15th  June,  1897. 

4.  Revision  of  United  States  Constitution. — Bar  Association,   Nashville, 

Tenn.,  30th  July,  1897. 

ARTICLES. 

5.  San  Miguel  de  Guandape. — "Student"  Magazine,  April,  1897. 

6.  Progress  of  the  IjAW.— American  Law  Review,  May,  1897. 

7>  Maladministration  of  the  Postopfice. — "Arena,"  May,  1897. 

8.  Twelve  Reasons  for  Postal  Telegraph.s. — "  Neiu  Time,"  July,  1897. 

9.  Letter  to  Railroad  Commission. — 12th  July,  1897. 

10.  Election  op  United   States  Senators  by  .the  People. — Indianapolis, 

Magazine,  July,  1897. 

SUPPLEMENT. 

11.  The  Physical  Napoleon. — Godey's  Magazine,  February,  1897. 

12.  Letters  to  Major  E.  J.  Hale  from  Mexico. — January,  1896. 

13.  Free  Silver  Indispensable,  But  Not  a  Panacea. — "Arena,"   August, 

1896. 

14.  Telegraph  in  England. — "Arena,"  June,  1896. 

15.  Election  of  Postmasters  by  the  People. — "  Arena,^^  June,  1894. 

16.  Claims  of  Long  Descent. — North  American  Review,  December,  1894- 

17.  True  Remedy  for  Lynch  Law. — American  Law  Review,  December,  1894. 


CHIEF  JUSTICE  IN 
TO 


Views    of   Edenton    Jurist    On 

Suffrage  Are  Vigorously 

Assailed 


thought.  There  is  some  hope  that  he  1 
may  some  day  even  reach  the  altitude  ] 
lof  ox-Prejntlept  Taft,  who  now  an- 1 
i  iiouiiceH  that  lie  will  be  for  equal  Buf-  j 
I  irage,  "whenever  the  women  become  J 
'iitted  for  it."  | 

Jiiilge  Bond  will  have  to  again  revise  , 
liis  opinion  {tf  to  the  intelligence  of  wo-; 
jiicn.  They  have  the  capacity  nnd  in- 
formation to  write  the  article — in  spite 
Oi  thin  lia^k  handed  lick  he  givee  them. 
It  if)  himself  and  men  like  him  who  arc 
lacking  information  because  they  will 
not  read  the  argiimente  and  facts  which 
the  women  have  so  ably  and  •ff«ctively 


(To  The  Editor:  For  some  time  Judge 
W.  M.  Bond  has  been  very  much  dis- 
turbed in  his  mind  at  the  progress  the 
ladies  were  making  in  the  equal  suffrage 
movement,  and  has  been  telling  the 
grand  juries  all  about  it.  After  his  late 
performance  of  that  kind  in  Baloigh, 
the  president  of  the  league  hit  back  as  i 
she  had  no  grand  jury,  in  an  article  to 
the  greater  jury,  tlie  public,  through 
your  widely  read  columns. 

On  Sunday  week  ago  he  rushed  into 
print  to  praise  himself  for  his  perform-  :i 
ances    at    Kinston    where    after    telling 
the   grrand   jury   he   had   "4,000   men   at  | 
Camp  Glenn"  ready  to  move  at  bis  com-  ^ 
mand,   he   did   procure   one   man   to   be 
I  indicted,  but  in  his  elation  said  nothing 
about  the  pin  the  lady  had   stuck  into 
him.     But  it  must  have  hurt  for  Sun- 
day,   after    nursing    the    wooind    for^^- 
week  by  the  balmy  waters  of  the  Albe- 
'^  marie,  he  again  rushes  into  print  to  tell 
about    that.      He    evidently    thinks    the 
ladies  were  no  better  than  lynchers  in 
daring  to  criticise  so  noble  and  perfect 
a  column  of  justice  as  himself. 

He  complains  that  the  president  of 
the  Equal  Suffrage  League  was  misin- 
formed and  made  erroneous  statements. 
He  does  not  point  out  a  single  errone- 
ous statement  but  the  pin  point  hurt 
him  or  fortunately  for  him  she  did  not-, 
use  a  hair  pin  or  the  temple  of  justice 
might  have  been  shaken  in  a  convulsion 

"From  turret  to  foundation  stone.'' 

He  eays  the  article  must  have  been 
written  on  information  furnished  by 
some  man  who  was  hiding  from  him  for 
it  showed  too  much  reading  and  knowl- 
edge for  a  woman  to  have  written  it  all 
by  herself,  though  he  condescendingly 
admits  now  that  women  have  intelli- 
gence and  indicates,  without  naming 
any  one,  that  I  am  the  man.  In  this  ad- 
, mission   that   women   have    intelligence, 


presented  in  their  plea  for  justice  and  a 
fair  chance,  that  all  the  great  parties 
are  now  pledged  to  grant  it  to  them, 
and  that  President  Wilson,  Vice  Presi- 
dent Marshal.  Speaker  Champ  Clark, 
and  all  the  Cabinet  Officers,  as  well  aa 
ex-President  Boosevelt,  ex-Speaker  Can- 
non and  floor  leader  J.  B.  Mann  and  a 
majority  in  the  U.  S.  Senate  announced 
themselves  in  its  favor  even  before  the 
great  conventions  met  and  ex-President 
Taft  and  others  of  lees  weight  were  at 
the  mourner's  bench. 

Judge  Bond  expresses  the  opinion 
that  some  vdcked  but  unnamed  man 
gave  Miss  Haywood  information  and  is 
now  in  hiding  from  him.  No  one  would 
wish  to,  or  could  shake  the  Judge's  es- 
timate of  himself  but  his  magnituw,  as 
viewed  by  others,  is  not  such,  either 
physically  or  intellectually,  as  to  cause 
any  man,  of  average  nerve  to  wish  to 
hide  from  his  wrath. 

There  is  no  reason  why  I,  or  any  oth- 
er man,  should  have  hesitated  to  give 
Miss  Haywood  information,  if  she  had 
asked  it,  and  as  he  points  out  no  error, 
he  has  no  cause  to  complain.  It  so  hap- 
pens that  I  have  not  seen  or  spoken  to 
her  or  had  any  communication  with  her 
since  the  public  speaking  in  the  Senate 
Chamber  some  months  ago.  But  if  hia 
Honor  "jest  naterally  wants  some  man 
to  tear  him  to  pieces,"  I  will  assume  re- 
sponsibility for  the  article  and  in  his 
battle  against  the  women  I  will  make 
the  fight  my  own.  The  ladies  can  stand 
aside  and  Judge  Bond  can  proceed. 
When  he  orders  up  the  "4,000  men  at 
Camp  Glenn,'"  which  he  said  he  had  at 
his  command,  to  avenge  the  lynching  j 
the  ladies  have  given  his  dignity,  I  will " 
meet  the  gallant  boys  in  khaki  at  the  ' 
foot  of  Fayetteville  street  and  shake  ■ 
hands  with  them.     Respectfully, 

WALTER  CLARK.     ' 

[A  reply  to  Judge  Bond  from  Misg? 
Martha  Haywood,  president  of  thfllj 
Equal  Suffrage  League  of  Raleigh,  hasi 
been  received,  but  owing  to  lack  of; 
space  ia  withheld  until  tomorrow  morn-j 


[REPRiNTf:D  FROM  152  N.  C,  565-583.] 

BANK  V.  CORPORATION  COMMISSIONERS. 


Clark,  C.  J.,  dissenting:  Though  much  has  been  said  on  the 
argument  in  regard  to  this  decision  affecting  the  price  of  State 
bonds,  reference  to  the  complaint  and  the  judgment  of  the  Cor- 
poration Commission  discloses  that  the  sole  purpose  of  the  ac- 
tion, and  the  only  point  presented,  is  as  to  whether  the  stock- 
holders in  a  bank  which  holds  State  bonds  are  exempt  to  the 
amount  of  these  bonds  from  the  payment  of  taxes  on  their  indi- 
vidual property — the  shares  which  they  buy  and  sell  at  will  and 
which  is  as  much  their  private  property  (though  paying  larger 
profits)  as  the  horses  and  plows  with  which  the  farmer  makes 
his  living  or  the  taxed  tools  which  a  mechanic  uses.  When  the 
State  issues  its  bonds,  it  has  never  been  denied  that  it  can  ex- 
empt them  from  taxation  by  State,  county  and  municipal  au- 
thorities. This  is  on  the  principle  that  the  issuance  of  bonds 
is  an  agency  of  government.  Besides,  the  State  in  effect  does 
collect  tax  by  deducting  it  in  the  rate  of  interest  which  the  bonds 
bear. 

The  $55,000  of  State  bonds  in  this  case  are  owned  by  the 
Raleigh  Savings  Bank  and  Trust  Company  and  have  not  paid 
one  cent  of  tax  to  the  State,  county  or  city,  and  no  one  has  ever 
suggested,  or  does  now  suggest,  that  they  should.  By  reason  of 
such  exemption  from  taxation  the  bank  saves  some  $1,375  an- 
nually, which  swells  to  that  extent  the  fund  annually  available 
to  be  divided  among  its  stockholders.  l^J'ot  content  with  that, 
the  stockholders  in  this  case  are  asking  for  a  second  exemption, 
another  $1,375  annually,  by  again  deducting  the  same  $55,000, 
in  assessing  the  value  of  their  private  property,  the  shares  of 
stock,  for  taxation.  The  shareholders  do  not  own  these  bonds. 
They  are  owned  by  the  bank  itself,  and  the  bank  has  been 
already  exempted  from  taxation  on  $55,000  on  account  of  the 
bank's  ownership  of  them. 

N^othing  is  better  settled  by  the  uniform  decisions  of  this 
Court  and  of  the  United  States  Supreme  Court  than  that  the 
property  of  a  bank  and  the  shares  of  the  stockholder  are  en- 
tirely separate  and  distinct,  and  that  the  taxation,  or  exemption, 
of  the  one  is  in  nowise  a  taxation  or  exemption  of  the  other. 
Belo  V.  Coinmissioners,  82  'N.  C,  415;  Commissioners  v.  To- 
bacco Co.,  116  ]Sr.  C,  446.  Indeed,  so  thoroughly  is  this  prin- 
ciple settled  by  repeated  decisions  of  the  Supreme  Court  of  the 
United  States  that  in  Shelhy  Co.  v.  Bank,  161  U.  S.,  140,  it  is 
declared  that  no  one  noiv  disputes  that  they  are  separate  and 
distinct  classes  of  property. 

In  numerous  cases  in  which  stockholders  in  banks,  holding 
United  States  bonds,  have  contended  that  their  shares  in  such 


bank  were  exempt  from  taxation  to  the  extent  of  such  United 
States  bonds  and  that  the  vahie  of  their  bonds  should  be  de- 
ducted in  assessing  the  shares  of  stock  for  taxation,  that  Court 
has  imiformly  rejected  the  contention  upon  the  ground  that  the 
bonds  were  the  property  of  the  bank  and  exempt  as  such,  and 
that  the  shares  were  the  property  of  individuals  and  not  entitled 
to  any  exemption  in  assessing  their  value  on  account  of  the 
bonds  so  held  by  the  bank.  This  is  the  very  contention  which 
the  plaintiffs  are  making  in  this  ease  and  which  has  been  re- 
jected whenever  presented  by  the  highest  Court  in  the  land. 
Va7i  Allen  v.  Assessors,  3  Wall.,  573;  Bradleij  r.  People,  4  Wall., 
459;  Trust  Co.  v.  Lander,  184  U.  S.,  111. 

In  Coynmissioners  v.  Tobacco  Co.,  116  X.  C,  447,  following 
the  decisions  of  the  Supreme  Court  of  the  United  States  and 
the  previous  decisions  of  this  Court,  it  Avas  said :  "The  capital 
stock  belongs  to  the  corporation.  The  shares  or  certificates  of 
stock  are  entirely  a  different  matter.  They  belong  to  the  share- 
holders individually,  and  under  the  Constitution  must  be  taxed 
ad  valorem  like  other  property  belonging  to  the  holder,  inde- 
pendentlv  of  the  taxation  upon  the  corporation,  its  franchises, 
etc." 

If  it  is  now  held  otherwise  as  to  the  plaintiffs,  shareholders 
in  a  bank,  as  to  our  State  bonds,  in  this  case  reversing  all  pre- 
vious decisions,  we  may  not  only  strike  from  the  tax  books 
$4,000,000  in  value  of  shares  of  stock  in  State  banks,  but  we 
may  very  probably  be  exempting  all  National  banks  from  any 
taxation  whatsoever.  The  State  cannot  discriminate  against 
United  States  bonds. 

The  act  before  us  exempts  three  classes  of  property:  1.  The 
bonds  themselves  are  exempt  from  all  taxation,  direct  or  indi- 
rect, general  or  special.  2.  The  coupons  paid  on  such  bonds 
are  not  subject  to  taxation  as  an  income  tax.  3.  The  surplus 
of  any  bank,  when  consisting  of  such  bonds,  shall  be  exempt 
from  taxation.  N^ot  a  word  is  said  about  exempting  shares  of 
stock. 

The  argument  that  the  shares  of  stock  in  the  plaintiff's  bank 
are  nontaxable  because  their  value  is  due  in  part  to  the  fact 
that  if  the  bank  was  Avound  up  and  the  surplus  divided,  the  pro- 
ceeds of  such  nontaxable  bonds,  derived  from  the  sale  thereof, 
would  be  divided  among  the  shareholders,  is  fallacious  because 
it  confounds  the  surplus,  owned,  held  and  controlled  by  the  bank, 
with  the  shares  of  stock,  which  are  owned,  held  and  controlled 
by  individuals.  The  Corporation  Commission  is  required  by 
law  to  assess  the  value  of  shares  of  stock  in  all  banks  for  taxa- 
tion against  the  owners  of  the  shares.  When  this  matter  was 
presented  to  that  body,  it  assessed  the  value  of  the  plaintiff's 
shares  of  stock  at  $104.40  per  share,  and  its  decision  was  in  the 
following  words : 


I 


"In  assessing  the  shares  of  stock  in  this  bank  the  Corporation 
Commission  followed  the  direction  of  the  statute,  as  it  did  not 
appear  such  shares  had  a  market  value,  by  adding  together  the 
capital  stock,  surplus  and  undivided  profits  and  deducting  there- 
from the  amount  of  real  and  personal  property  owmed  by  said 
institution  on  which  it  paid  taxes,  as  follows : 

Capital  stock  $15,000.00 

Surplus 60,000.00 

Undivided  profits   342.25 

making  a  total  of  $75,342.25,  and  deducting  therefrom  the  as- 
sessed value  of  real  and  personal  property,  as  follows : 

Office  furniture   $3,000.00 

Commercial  ISTational  Bank  stock 8,700.00 

Fidelity  Bank  stock 1,000.00 

making  a  total  of  $12,700,  leaving  a  balance  of  $62,642.25, 
which,  divided  by  600,  the  number  of  shares  of  stock  of  said 
bank,  ascertained  the  value  of  each  share  to  be  $104.40,  subject 
to  taxation. 

"There  was  no  allegation  that  there  was  any  insolvent  debt 
due  this  institution. 

"This  assessment  is  not  satisfactory  to  John  T.  Pullen,  who 
owns  fourteen  shares  of  stock  in  this  institution.  He  contends, 
and  the  report  on  which  this  assessment  is  based  shows,  that  the 
bank  has  a  surplus  of  $60,000,  and  has  invested  $55,000  of  this 
surplus  in  N^orth  Carolina  State  bonds,  issued  under  chapter 
512,  Laws  1909,  and  he  claims  that  this  amount  should  also  be 
deducted  from  the  aggregate  value  of  all  the  shares  of  stock.  In 
other  words,  the  contention  is  that,  in  addition  to  the  assessed 
value  of  real  and  personal  property  on  which  the  corporation 
pays  taxes,  $55,000  should  be  deducted,  because  this  much  of 
the  surplus  of  the  bank  was  invested  in  the  above-named  bonds. 

"The  Corporation  Commission  failed  to  see  the  force  of  this 
contention,  as  they  were  not  assessing  the  capital  stock,  or  sur- 
plus, or  undivided  profits  of  the  bank,  but  a  distinct  species  of 
property,  to  mt,  the  shares  of  stock  of  the  bank  i7i  the  hands  of 
the  shareholder.  The  bank  is  not  required  by  law  to  list  any 
of  its  property,  whether  capital  stock,  surplus,  undivided  profits 
or  other  property,  except  so  much  of  it  as  is  invested  in  real 
estate  inside  of  the  State.  And  this  bank  has  alread_y  had  the 
full  exemption  from  taxation  of  its  I^orth  Carolina  State  bonds. 
The  only  property  listed  by  the  bank  for  taxation  was  office 
furniture,  $3,000;  Commercial  ISTational  Bank  stock,  $8,700; 
and  Fidelity  Bank  stock,  $1,000,  and  these  amounts  were  de- 
ducted. 

2 


4 

"The  General  Assembly  did  not  intend  that  the  value  of  the 
property  exempt  from  taxation  which  is  owned  by  a  corporation 
should  be  deducted  from  the  aggregate  value  of  all  the  shares 
of  stock  in  said  corporation  in  order  to  ascertain  the  value  of 
such  shares  for  taxation,  as  appears  from  the  plain  directions 
of  the  statute :  'The  value  of  such  shares  of  stock  in  the  hands 
of  shareholders  shall  be  the  market  value.  If  they  have  no 
market  value,  the  value  shall  be  ascertained  by  adding  together 
the  capital,  surplus  and  imdivided  profits  and  deducting  there- 
from,' not  such  property  as  is  exempt  from  taxation,  but  'the 
amount  of  real  and  personal  property  owned  by  said  institution 
on  which  it  pays  taxes.'  See  Machinery  Act,  Laws  1909,  ch. 
440,  sec.  33.  There  is  no  conflict  between  this  statute  and  chap- 
ter 512,  Laws  1909. 

"That  the  shares  of  stock  in  the  hands  of  shareholders  are  a 
distinct  species  of  property  from  that  owned  by  the  corporation, 
and  that  the  General  Assembly  can  require  it  to  be  taxed  at  its 
value,  notwithstanding  that  a  part  or  the  whole  of  the  bank's 
funds  are  invested  in  property  exempt  from  taxation,  has  been 
held  in  our  courts  in  Belo  v.  Commissioners,  82  N.  C,  415; 
Commissioners  v.  Tobacco  Co.,  116  N.  C,  441,  and  numerous 
other  cases;  and  by  the  Supreme  Court  of  the  United  States  in 
case  of  Cleveland  Trust  Company  v.  Lander,  184  U.  S.,  Ill, 
46  U.  S.  R.  L.  Ed.,  456.  Notwithstanding  the  number  of  words 
used  to  exempt  the  same,  namely,  'The  bonds  and  coupons  shall 
be  exempt  from  all  State,  county  and  municipal  taxation  or 
assessment,  direct  or  indirect,  general  or  special,  whether  im- 
posed for  general  revenue  or  otherwise,  and  the  interest  paid 
thereon  shall  not  be  subject  to  taxation  as  income,  nor  shall 
State  bonds  or  coupons  be  subject  to  taxation  when  constituting 
a  part  of  the  surplus  of  any  bank,  trust  company  or  other  cor- 
poration,' we  are  of  the  opinion  that  the  same  cannot  be  con- 
strued so  as  to  authorize  the  deduction  contended  for  by  the 
plaintiff,  in  view  of  the  authorities  cited  above. 

"Franklin  McI^eill, 

"Chairman." 

The  sta:tute  requires  that  taxation  on  the  shares  of  hank  stock 
in  the  hands  of  individual  owners  shall  be  laid  upon  the  value 
of  such  stock,  which  valuation  shall  be  reached:  (1)  Taking 
the  market  value  of  the  stock;  (2)  Deducting  the  value  of  the 
real  and  personal  property  of  the  bank,  which  has  been  already 
taxed;  (3)  By  dividing  the  remainder  thus  left  by  the  number 
of  shares.  By  these  processes  the  Corporation  Commission 
found  that  the  balance  was  $62,672  and  that  the  shares  of  stock 
are  worth  $104.40  per  share.  The  plaintiffs  are  seeking,  in 
this  case,  to  deduct  $55,000  (on  which  its  owner,  the  bank,  has 


already  had  exemption),  leaving  the  taxation  value  of  the  total 
shares  in  this  bank  for  taxation  $7,642,  being  a  little  more  than 
$12  a  share. 

It  is  a  matter  of  universal  knowledge  that  within  the  last 
three  months  a  large  part  of  this  stock — in  fact,  more  than  five- 
sixths  thereof — has  been  purchased  by  another  bank  at  $175 
per  share,  or  seven  times  its  par  value  ($25).  On  the  shares  for 
which  the  purchasers  paid  $175  it  is  now  asked  that  assessment 
for  taxation  against  said  purchasers  shall  be  laid  at  a  little  more 
than  $12  per  share. 

The  statute  law  of  the  State,  Laws  1909,  ch.  440,  sec.  33  (p. 
705),  provides:  "The  residents  of  this  State  who  are  sharehold- 
ers in  any  bank,  banking  association  or  savings  institution 
(whether  State  or  ISTational)  shall  list  their  respective  shares  in 
the  county,  city  or  town,  precinct  or  village  where  they  reside, 
for  the  purpose  of  county,  school  or  municipal  taxation.  *  *  * 
All  shares,  whether  owned  by  residents  or  nonresidents,  shall  be 
listed  at  the  time  for  listing  taxes.  The  county  commissioners, 
list  takers  and  other  county  and  municipal  officers  shall  have 
the  same  power  to  enforce  the  listing  of  shares  of  stock  in  any 
such  bank,  banking  association  or  savings  institution,  whether 
held  by  residents  or  nonresidents,  as  they  have  for  enforcing  the 
listing  of  their  personal  property.  The  taxation  of  shares  of 
any  such  bank,  banking  association  or  corporation,  or  savings 
institution,  shall  not  be  at  a  greater  rate  than  is  assessed  upon 
any  other  moneyed  capital  in  the  hands  of  individual  citizens, 
whether  such  taxation  is  for  State,  county,  school  or  municipal 
purposes."  And  the  next  section  provides  that  in  assessing  the 
value  of  the  shares  of  stock  the  highest  price  of  sales  of  stock 
during  the  year  and  the  average  price  of  sales  of  stock  during 
the  year  shall  be  taken  into  consideration.  These  provisions 
shoAv  that  the  lawmaking  powers  are  at  one  with  the  decisions 
of  the  courts  in  considering  that  the  shares  of  stock  are  entirely 
separate  and  distinct  property  from  the  property  held  by  the 
bank  itself. 

The  Constitution  of  the  State,  Art.  Y,  sec.  3,  provides :  "Tax- 
ation shall  he  hy  uniform  rule  ad  valorem.  Laws  shall  be  passed 
taxing  by  uniform  rule  all  moneys,  credits,  investments  in  bonds 
and  personal  property  according  to  its  true  value  in  money." 
And  then  follows  section  5  of  the  same  article,  which  authorizes 
the  General  Assembl}^  to  exempt  cemeteries  and  property  held 
by  schools,  churches,  charities,  and  the  like,  and  also  personal 
property,  not  to  exceed  $300  to  each  taxpayer. 

The  statute  law  of  the  State,  Laws  1909,  ch.  440,  sec.  63,  in 
accordance  with  the  provisions  of  the  Constitution,  provides 
(p.  725)  :  "The  following  personal  property  and  no  oilier  shall 
be  exempt  from  taxation,  State  and  local."  Then  follow  the 
exemptions  of  property,  school   and  charity  property  and  an 


6 


exemption  (p.  726)  "not  exceeding  $25"  of  wearing  apparel, 
etc.,  to  each  taxpayer.  And  then,  to  prevent  any  possible  mis- 
understanding, Laws  1909,  ch.  438,  sec.  5,  repeals  all  other  ex- 
emptions of  any  other  kind  than  that  above  enumerated  which 
have  heretofore  been  granted.  This  legislation  shows  conclu- 
sively that  there  was  no  intentioii  on  the  part  of  the  Legislature 
to  extend  an  exemption  to  the  shares  of  bank  stock  held  by  the 
plaintiffs.  Such  property  is  proverbially  the  best  in  the  State, 
and  the  shareholders  of  a  bank  whose  stock,  by  good  management 
and  exemption  from  taxation,  has  increased  in  value  to  "7  for  1," 
certainly  do  not  own  an  interest  in  "an  infant  industry"  requir- 
ing a  subsidy  from  the  State  in  the  shape  of  exemption  from 
taxation.  Owing  to  increased  demands  for  public  purposes,  the 
Legislature  has  not  felt  that  the  State  was  able  to  grant  to  less 
prosperous  taxpayers  the  exemption  of  $300  per  head,  which 
it  is  authorized  to  do  by  the  Constitution,  but  restricts  the  ex- 
emption to  $25.  It  is  not  reasonable  to  assume  that  it  intended 
to  exempt  many  thousands  of  dollars  from  taxation  in  the  shape 
of  shares  in  the  banks. 

As  the  statute,  Laws  1909,  ch.  440,  sec.  141/2  (p.  696),  de- 
fines the  market  value  as  the  amount  for  which  property  is  sold 
for  cash  in  the  ordinary  course  of  dealing,  it  would  seem  that 
the  error  in  the  action  of  the  Corporation  Commission  is  in  not 
assessing  this  property  at  $175  instead  of  $104.40,  and  the  share- 
holders certainly  cannot  complain,  as  they  have  thus,  already, 
received  an  exemption  of  $70  per  share  deducted  from  the  "true 
value,"  or  a  40  per  cent  exemption. 

It  was  further  argued  by  the  plaintiff  that,  inasmuch  as  the 
statute  provided  that  in  assessing  the  value  of  the  shares  in  the 
hands  of  the  shareholders,  the  Corporation  Commission  shoi;ld 
deduct  "the  real  and  personal  property  on  which  the  bank  has 
paid  taxes,"  that,  therefore,  the  Corporation  Commission  should 
also  deduct  the  property  on  which  the  bank  has  not  paid  taxes. 
It  is  impossible  to  adopt  this  as  logic.  If  the  Legislature  had 
meant  to  do  so,  it  would  certainly  have  said  it,  and  in  a 
simpler  way,  by  saying  that  "all  shares  of  bank  stock  shall  be 
exempt  from  taxation,"  since  that  is  what  it  would  amount  to. 

But  the  Corporation  Commission,  in  this  case,  have  deducted 
the  value  of  such  real  and  personal  property  "on  which  the 
bank  has  paid  taxes,"  to  wit,  $12,700,  before  arriving  at  the 
amount  at  which  the  plaintiffs'  shares  were  assessed.  Though 
the  point  is  not  presented,  it  is  well  to  call  attention,  here  and 
now,  to  the  fact  that  unless  we  deny,  what  all  the  courts  have 
held,  that  the  shares  of  stock  in  the  hands  of  individuals  are 
separate  and  distinct  from  the  property  of  the  corporation,  the 
exemption  in  favor  of  the  shareholders  of  the  value  of  the  prop- 
erty on  which  the  ha^ik  has  paid  taxes  is  in  violation  of  the 
provision  of  the  Constitution  which  forbids  exemption,  and  the 


I 


State  has  lost  many  tliousands  of  dollars  in  taxation  annually 
by  this  point  not  having  been  considered.  It  is  very  clear  that 
one  man  cannot  have  an  exemption  on  his  property  because 
another  man  has  paid  taxes  on  his  own  property. 

It  was  contended  in  the  argument,  by  the  plaintiffs'  counsel, 
that  the  effect  of  a  decision  by  this  Court  that  the  stock  in  the 
hands  of  shareholders  would  be  exempted  from  taxation  to  the 
amount  of  the  State  bonds  owned  by  the  bank,  would  create  a 
demand  which  would  take  up  possibly  the  whole  of  the  issue  of 
$4,000,000  of  bonds.  It  is  no  part  of  the  province  of  a  court  of 
justice  to  render  decisions  because  of  the  effect,  one  way  or  an- 
other, on  the  financial  market  in  which  bonds  and  stocks  are 
traded  for.  The  questions  before  us  are  only,  whether  the  Leg- 
islature attempted,  and  had  the  power,  to  exempt  the  shares  of 
stock  in  the  hands  of  the  shareholders  when  it  provided  that 
''the  bonds  and  coupons  shall  be  exempt  from  all  State,  county 
and  municipal  taxation  or  assessment,  direct  or  indirect,  general 
or  special,  whether  imposed  for  general  revenue  or  otherwise, 
and  the  interest  paid  thereon  shall  not  be  subject  to  taxation  as 
for  income,  nor  shall  bonds  and  coupons  be  subject  to  taxation 
when  constituting  a  paj't  of  the  surplus  of  any  bank,  trust  com- 
pany or  other  corporation."  These  bonds  have  not  been  sub- 
ject to  any  tax,  direct  or  indirect,  general  or  special,  either  as 
sui'plus  or  in  any  other  way.  The  exemption  is  to  the  bonds 
and  is  given  to  the  oivner,  whether  an  individual  or  a  bank,  and 
when  constituting  a  part  of  the  surplus  of  the  latter. 

But  it  is"  contended  that  the  word  "indirect"  should  be  con- 
strued to  extend  the  exemption,  not  only  to  the  bank  which  has 
already  had  the  benefit  of  exemption,  but  further  to  the  share- 
holders. There  is  no  such  intimation  in  the  statute.  The  ex- 
pression "indirect  taxes"  is  well  known,  and  in  this  connection 
it  can  only  mean  taxes  "direct  or  indirect,  general  or  special," 
on  the  bonds  themselves  in  the  hands  of  the  owner,  to  wit,  the 
bank.  To  give  it  the  construction  contended  for  would  give  the 
w^ord  "indirect"  a  construction  which  has  never  been  placed 
upon  it  by  any  court.  A  tax  on  the  shares  in  the  hands  of  the 
owner  cannot  possibly  be  a  tax  on  the  property  of  the  bank. 

If  the  plaintiffs'  contention  is  correct,  the  Legislature  has 
passed  an  act  which  has  this  singular  effect :  If  any  individual 
or  corporation  other  than  a  bank  owns  one  of  these  bonds  it  is 
exempt  from  all  taxes  in  the  owjier's  hands — a  single  exemp- 
tion; but  if  a  bank  owns  it,  as  part  of  its  surplus,  the  share- 
holders get  an  exemption  to  the  like  amount  on  their  individual 
property,  their  shares  of  stock — a  double  ez^emption  from  taxa- 
tion. 

The  owner  of  more  than  five-sixths  of  the  shares  of  the  Ra- 
leigh Savings  Bank  and  Trust  Company  is  another  bank,  and 
the  only  effect  of  the  decision,  if  rendered  in  favor  of  the  ex- 


emptiou,  "would,  be  to  increase  vastly  the  value  of  the  shares  of 
stock  in  the  Raleigh  Savings  Bank  and  Trust  Company,  and 
also  the  value  of  the  shares  of  stock  in  the  bank  Avhich  now 
holds  five-sixths  of  the  shares  of  the  former  bank. 

The  complaint  frankly  avers  the  true  object  of  this  suit, 
which  is  to  obtain  a  coveted  and  most  valuable  exemption  from 
taxation  of  the  shares  in  the  hands  of  the  shareholders.  It 
does  not  aver  that  the  plaintiffs  are  seeking  to  benefit  the  State 
by  raising  the  value  of  the  State  bonds,  nor  that  they  are  here 
to  advance  the  intei'ests  of  the  State.  They  are  seeking  an  ex- 
emption of  their  shares  because  of  State  bonds  which  the  bank 
has  already  bought,  and  it  is  not  reasonable  to  suppose  that 
they  should  wish  to  advance  the  value  of  State  bonds  which 
either  bank  may  hereafter  desire  to  purchase.  Counsel  for  the 
plaintiffs,  however,  have  contended  that  such  would  be  the  effect. 
If  it  is  proper  for  the  Court  to  consider  such  matter,  it  may  be 
well  to  insert  here,  from  the  defendant's  brief,  the  answer 
which  they  make  to  the  suggestion : 

"The  capital  stock  of  the  plaintiff's  bank  is  $15,000.  Its  sur- 
plus is  $60,000.  It  holds  $55,000  of  these  nontaxable  bonds  as 
a  part  of  its  surplus.  The  life  of  these  nontaxable  bonds  is 
forty  years.  Let  us  see  what  would  be  the  result  to  the  State  if 
the  law  requires  the  taxing  power  to  deduct  these  $55,000  of 
bonds  from  the  actual  value  of  the  capital  stock  of  this  bank  in 
order  finally  to  ascertain  the  value  of  the  shares  of  stock 
therein : 

"The  total  tax  rate  in  Raleigh  is  about  $2.50.  Two  and  one- 
half  per  cent  of  $55,000  equals  $1,375.  Forty  times  $1,375, 
that  is  to  say,  the  loss  of  taxes  each  year,  multiplied  by  the 
number  of  years  that  the  bonds  run,  equals  $55,000.  So  the 
State  in  forty  years  would  lose  the  principal  of  the  bonds ;  and 
for  what  ? — to  gain  one  point  by  way  of  premium  when  first  sold 
(record,  p.  2).  A  pretty  costly  whistle,  to  be  sure!  It  will 
be  noted  that  the  'controversy  without  action'  states  that  by  ex- 
empting the  shares  of  stock  from  taxation  the  premium  upon  the 
bonds  will  be  increased  one  point.  Taking,  therefore,  these 
$55,000  of  bonds  as  a  basis,  the  State  would  receive  by  way  of 
extra  premium,  if  sold  with  the  exemptions  contended  for,  1  per 
cent,  or  $550.  But  at  the  end  of  forty  years  the  State,  etc., 
would  lose,  as  above,  $55,000,  and  under  the  contention  of  ex- 
emption, if  allowed  because  the  tax  is  not  on  the  shares  but  on 
the  corporation,  all  N^ational  banks  would  go  scot  free  of  all 
taxes.  And  yet  we  are  authorized  to  state  from  the  Corporation 
Commission  that  it  is  not  the  financial  view  of  this  matter 
which  they  would  call  to  the  attention  of  the  Court,  but  the 
legal  phases  of  the  same.  We  simply  contend  that  a  statute 
which  results  in  such  disastrous  consequences  financially  to  the 
State  should  not  be,  by  the  Court,  interpreted  as  contended  for 


by  the  appellant,  unless  the  meaning  of  the  statute  is  clear  be- 
yond doubt,  without  inference  and  without  presumption.  And 
we  maintain  that  the  plaintiffs  have  not  shown  and  cannot  show 
that  the  intention  of  the  Legislature  is  clear  beyond  all  doubt 
in  respect  to  this  matter." 

In  reply  to  that,  the  plaintiff's  counsel  subsequently  con- 
tended that  only  a  very  small  part  of  the  bonds  would  be  bought 
by  the  banks  in  this  State.  If  so,  such  a  very  small  demand 
could  not  materially  affect  the  price  of  the  bonds.  Indeed,  the 
only  evidence  adduced  before  the  Corporation  Commission,  that 
the  exemption  of  the  shares  of  stock  would  affect  the  price  of 
these  bonds,  is  that  of  a  witness  who  thought,  perhaps,  the  price 
would  be  raised  %  of  1  per  cent.  That  was  only  his  opinion, 
and  the  contrary  opinion  that  the  price  of  the  bonds  would  not 
be  affected  at  all  is  probably  entertained  by  a  large  majority  of 
the  bank  officials  of  this  State. 

Exemption  of  any  property  from  its  fair  and  just  share  of 
public  burdens  increases  the  taxation  paid  by  all  other  property. 
Such  exemption  has,  therefore,  been  expressly  prohibited  by  the 
State  Constitution.  Indeed,  it  may  with  truth  be  said  that  no 
legislation  can  be  more  unjust  or  more  odious.  For  many  years 
the  State  contended  for  the  annulment  of  an  exemption  from 
taxation  which  had  been  granted  to  two  great  railroads  in  the 
State.  Such  grant  had  been  made  at  a  time  when  railroads 
were  an  "infant  industry,"  and  the  State  thought  their  construc- 
tion should  be  encouraged  by  contribution  from  the  other  tax- 
payers by  exempting  those  railroads  from  taxation.  Besides, 
at  that  time  there  w^as  no  provision  in  the  Constitution,  as  now, 
forbidding  the  exemption  of  any  property.  Yet  the  State 
strongly  contended  for  years  that  the  exemption  was  unjust  and 
illegal,  and  finally  the  repealing  act  was  held  valid  by  this 
Court  in  R.  R.  v.  Allshrook,  110  IST.  C,  137,  which  opinion  was 
affirmed  upon  a  writ  of  error  by  the  United  States  Suj)reme 
Court.  In  that  opinion  by  this  Court,  110  JST.  C,  p.  117,  it  was 
said,  quoting  from  Chase,  C.  J.,  and  Miller  and  Field,  J  J.,  in 
Washington  v.  Rouse,  8  Wall.,  441 :  "We  do  not  believe  that 
any  legislative  body,  sitting  under  a  State  Constitution  of  the 
usual  character,  has  a  right  to  sell,  to  give,  or  to  bargain  away 
forever  the  taxing  power  of  the  State.  *  *  *  jf  ^\^q  Legis- 
lature can  exempt,  in  perpetuity,  one  piece  of  land,  it  can  ex- 
empt all  land.  It  can  as  well  exempt  persons  as  corporations. 
They  go  on  to  say  that  rich  men  and  rich  coi*porations  with  the 
appliances  they  are  known  to  use,  may  obtain  perpetual  exemp- 
tion 'from  taxation  and  cast  the  burden  of  government  and  the 
payment  of  debts  on  those  who  are  too  poor  or  too  honest  to 
buy  such  immunity' ;  and  they  say  further,  'with  as  full  respect 
for  the  authority  of  former  decisions  as  belongs,  from  teaching 
and  habit,  to  judges  trained  in  the  common-law  system  of  juris- 


10 

prudence,  we  think  that  there  may  he  questions  touching  the 
powers  of  legislative  hodies  which  can  never  he  finally  closed  by 
the  decisions  of  the  courts,  and  the  one  we  have  here  considered 
is  of  this  character.'  We  are  strengthened  in  this  view  of  the 
subject  by  the  fact  that  a  series  of  dissents  from  this  doctrine 
by  some  of  our  predecessors  shows  that  it  has  never  received 
the  full  assent  of  this  Court,  and  I'eferring  to  those  dissents  for 
more  elaborate  defense  of  our  views,  we  content  ourselves  with 
thus  renewing  the  protest  against  a  doctrine  which  we  think 
must  be  finally  abandoned." 

In  the  above  case  we  were  holding  invalid  an  exemption  from 
taxation  gi'anted  under  a  Constitution  which  did  not  forbid 
such  exemption,  and  purely  on  the  gi'ound  that  the  Legislature 
could  not  grant  an  irrevocable  exemption.  In  the  present  case 
the  exemption  is  not  given  by  any  words  which  refer  to  shares  of 
stock  or  to  shareholders,  and  is  a  most  far-fetched  deduction 
from  the  use  of  the  word  "indirect,"  and  if  it  can  be  construed 
to  convey  the  meaning  the  plaintiffs  contend,  then  the  exemp- 
tion is  in  direct  violation  of  the  Constitution  of  the  State. 

It  has  been  unifonnly  held  by  the  United  States  Supreme 
Court,  by  courts  of  other  States,  and  by  this  Court,  that  in 
respect  to  coi*porations  ''the  Legislature  can  levy  any  two  or 
more  of  the  following  taxes,  simultaneously:  (1)  on  the  fran- 
chise (including  dividends);  (2)  on  the  capital  stock;  (3)  on 
the  tangible  property  of  the  corporation;  and  (4)  on  the  shares 
in  the  hands  of  the  shareholders.  The  tax  on  the  two  subjects 
last  named  is  imperative."  Commissioners  v.  Tobacco  Co.,  116 
]Sr.  C,  441,  and  cases  there  cited.  That  action  was  brought  by 
an  eminent  lawyer,  now  a  member  of  this  Court,  whose  conten- 
tions to  the  above  effect  were  sustained.  ^Notwithstanding  that 
it  was  there  held  that  a  corporation  must  pay  tax  on  all  its 
property,  like  every  one  else,  the  counsel  for  defendant  says  truly 
that  "not  a  hank  in  North  Carolina  to-day  pays  one  cent  of  tax 
to  the  State,  county  or  town,  for  franchise  tax,  income  tax,  nor 
any  tax  whatever  upon  its  capital  stock  (which  taxes  are  op- 
tional with  the  Legislature),  nor  upon  any  of  its  property 
(which  last  tax  is  imperative  by  the  Constitution) ,  save  the 
tax  on  its  hanking  house  and  furniture  and  the  like"  (in  this 
case  $12,700),  and  even  that  tax  is  recouped  by  unconstitution- 
ally deducting  the  amount  of  the  property  thus  taxed  from  the 
assessment  of  the  shares  against  the  shareholders.  This  is  in 
direct  violation  of  the  Constitution.  If  the  farmers,  and  other 
citizens  and  all  other  corporations,  Avere  treated  to  a  like  total 
exemption  from  all  taxation,  they,  too,  would  show  a  great  de- 
gree of  prosperity.  ISTeither  railroads,  cotton  mills  nor  any 
corporation,  other  than  banks,  are  thus  practically  exempted 
from   all   taxation,  nor  are   shareholders   in   any   corporations 


11 

otlier  than  banks  authorized  to  deduct  in  estimating  the  value 
of  their  shares  for  taxation  the  amount  of  property  on  which 
the  corporation  has  paid  any  tax. 

To  sum  up :  "Exemptions  from  taxation  are  regarded  as  in 
derogation  of  the  sovereign  and  of  the  common  right,  and,  there- 
fore, not  to  be  extended  beyond  the  exact  and  express  require- 
ments of  the  langaiage  used,  construed  stmctissimi  juris."  R.  R. 
V.  Thomas,  132  IT.  S.,  174.  Here  there  are  no  Avords  conferring 
an  exemption  upon  stockholders  in  the  banks,  and  it  requires 
an  ingenious  and  most  unusual  interpretation  of  the  words  ''in- 
direct tax"  to  confer  an  exemption  upon  the  plaintiffs. 

''Where  a  doubt  arises  as  to  the  existence  of  the  exemption, 
it  is  to  be  decided  in  favor  of  the  State."  BanJc  v.  Tennessee, 
104  U.  S.,  495.  Here  it  requires  an  ingenious  construction,  an 
unusual  one,  of  a  single  word  to  raise  a  doubt  in  favor  of  the 
exemption. 

"The  exemption  must  be  clearly  stated  and  will  not  be  in- 
ferred from  facts  which  do  not  irresistibly  point  to  the  exist- 
ence of  a  contract."  Judson  on  Taxation,  sec.  86.  There  can 
be  no  lawful  contract  of  exemption  made,  even  if  the  Legisla- 
ture had  so  intended,  because  their  action  would  be  in  violation 
of  the  Constitution. 

"No  claim  of  exemption  from  taxation  can  be  sustained  un- 
less established  beyond  all  doubt."  R.  R.  v.  Super-visors,  93 
TJ.  S.,  595;  R.  R.  v.  Missouri,  120  U.  S.,  569.  In  this  case,  of 
the  nine  judicial  officers  to  whom,  under  the  laws  of  this  State, 
this  matter  has  been  submitted,  only  three,  a  bare  majority  of 
this  Court,  considered  that  such  exemption  has  been  granted. 
The  three  Corporation  Commissioners,  the  judge  of  the  Superior 
Court,  and  two  judges  of  this  Court,  have  a  contrary  opinion. 
Surely,  the  point  is  not  "established  beyond  all  doubt''' — the 
test  which  the  Supreme  Court  of  the  United  States  applies. 

Such  exemptions  must  be  expressed  in  clear  and  unambigu- 
ous terms.  R.  R.  v.  Allsbrooh,  110  JST.  C,  158.  Can  any  one 
claim  that  such  is  the  case  here  when  neither  "shares"  nor 
"shareholders"  nor  exemption  to  them  are  named  in  the  statute, 
which  only  refers  to  exemption  of  the  bonds  when  owned  as  the 
surplus  of  the  bank  ? 

The  buyers  of  the  bonds,  upon  the  holding  of  the  Court  that 
the  shareholders  are  exempt  on  their  stock,  may  claim  that  the 
decision  of  this  Court  is  a  contract,  an  exemption  of  bank  shares 
annexed  to  the  exemption  of  $4,000,000  of  bonds,  being  a  double 
exemptio7i,  for  forty  years,  and  that  such  exemption  is  irrevoca- 
ble, even  though  the  Legislature  should  strike  out  the  act,  or 
the  Court  should  hereafter  express  a  contrary  opinion,  either 
in  another  suit  or  by  a  rehearing  in  this  case  and  change  of 
opinion  by  one  member  of  the  Court,  as  now  constituted,  or  by 
a  change  in  its  personnel.     The  dissenting  opinions  will  not  be 


12 


witiiout  value,  for  they  put  the  bond  buyers  upon  notice  that  if 
the  act,  as  thus  construed,  is  unconstitutional,  no  valid  contract 
of  exemption  of  shares  has  been  granted.  There  is  nothing  in 
the  judgment  of  the  Corporation  Commission  of  Avhich  the 
plaintiffs  have  a  right  to  complain. 


Hoke,  J.,  dissenting:  I  am  constrained  to  differ  from  the 
Court  in  its  decision  of  this  case,  and  the  question  presented 
being  a  matter  of  importance  both  to  the  parties  litigant  and  to 
the  public,  I  deem  it  proper  that  I  should  state  briefly  the 
reasons  for  my  position. 

It  has  been  long  an  accepted  principle  that  shares  of  stock 
in  a  bank,  when  owned  by  individuals,  are  entirely  separate  and 
distinct  from, the  corporate  property  and  assets.  This  Avas  held 
for  law  in  Van  Allen  v.  Nolan,  and  several  other  cases  of  like 
import,  sometimes  called  the  bank  tax  cases,  decided  as  far 
back  as  1865,  and  reported  in  70  U.  S.,  p.  573.  The  question 
there  chiefly  determined  was  whether  the  bonds  of  the  United 
States  Government  should  be  first  deducted  in  estimating  the 
value  of  shares  of  stock  in  the  hands  of  individual  owners  for 
the  purpose  of  State  taxation,  permissible  under  the  Federal 
statute;  and  it  was  held  that  while  the  bonds  of  the  Federal 
Government  were  exempt  from  any  and  all  forms  of  taxation, 
direct  or  indirect,  yet  the  shares  of  stock  owned  by  individuals 
being  an  entirely  distinct  and  separate  species  of  property,  the 
Government  bonds,  though  held  and  owned  by  the  bank,  should 
not  be  deducted  in  determining  the  value  of  these  shares. 

In  the  case  referred  to,  Associate  Justice  Nelson,  delivering 
the  opinion,  thus  states  the  principle  and  the  reason  for  it  as 
follows : 

"But  in  addition  to  this  view,  the  tax  on  the  shares  is  not  a 
tax  on  the  capital  of  the  bank.  The  corporation  is  the  legal 
owner  of  all  the  property  of  the  bank,  real  and  personal;  and 
within  the  powers  conferred  upon  it  by  the  charter,  and  for  the 
purposes  for  which  it  was  created,  can  deal  with  the  corporate 
property  as  absolutely  as  a  private  individual  can  deal  with  his 
own.  This  is  familiar  law,  and  will  be  found  in  every  work 
that  may  be  opened  on  the  subject  of  corporations. 

rj:  *  H!  *  H:  *  * 

"The  interest  of  the  shareholder  entitles  him  to  participate 
in  the  net  profits  earned  by  the  bank  in  the  employment  of  its 
capital,  during  the  existence  of  its  charter,  in  proportion  to  the 
number  of  his  shares;  and,  upon  its  dissolution  or  termination, 
to  his  proportion  of  the  property  that  may  remain  of  the  cor- 
poration after  the  payment  of  its  debts.     This  is  a  distinct. 


13 

iiidependent  interest  or  property,  held  by  the  shareholder  like 
any  other  property  that  may  belong  to  him."  Van  Allen  v. 
Nolan,  70  U.  S.,  573. 

While  this  principle  was  originally  established  by  a  divided 
Court,  it  has  been  since  repeatedly  affirmed  and  applied  by  the 
Supreme  Court  of  tlie  United  States,  as  in  Bank  v.  Tennessee, 
161  U.  S.,  134;  Bank  v.  Des  Moines,  205  U.  S.,  518,  and  many 
other  cases;  and  has  been  so  long  recognized  and  acted  upon  by 
courts  and  Legislatures  that  in  the  impressive  language  of  Asso- 
ciate Justice  Moody,  delivering  the  opinion  in  the  case  last 
cited,  "It  has  come  to  be  inextricably  mingled  with  all  taxing 
systems  and  cannot  be  disregarded  \^dthout  bringing  them  into 
confusion  that  would  be  little  short  of  chaos." 

The  decisions  of  our  own  State  are  equally  pronounced  in 
recognition  of  this  principle.  Commissioner's  v.  Tobacco  Co., 
116  JST.  C,  441 ;  Belo  v.  Commissioners,  82  N".  C,  415.  In  the 
last  case,  Chief  Justice  Smith,  speaking  to  this  question,  said: 

"In  an  able  opinion  of  the  author  of  that  valuable  work  on 
railways,  commenting  on  the  law,  he  says :  'We  here  find  the 
clear  recognition  of  this  kind  of  corporate  property,  taxable  to 
the  corporation,  and  the  shares  in  the  hands  of  the  corporators, 
distinctly  defined  as  a  fourth  species  of  corporate  property,  tax- 
able only  to  the  oioners  or  holders:  (1)  The  capital  stock;  (2) 
the  corporate  property;  (3)  the  franchise  of  the  corporation, 
all  of  which  is  taxable  to  the  corporation ;  and  the  shares  in  the 
capital  stock,  which  are  taxable  only  to  the  shareholders.'  1 
Red.  Am.  R.  Gases,  497. 

"A  tax  on  the  shares  of  stockholders  in  a  corporation  is  a  dif- 
ferent thing  from  a  tax  on  the  corporation  itself,  or  its  stock, 
and  may  be  laid  irrespective  of  any  taxation  of  the  corporation 
where  no  contract  relations  forbid  it.  Cooley  Const.  Lim.,  169 ; 
Field  on  Corp.,  521. 

"In  Van  Allen  v.  Assessors,  3  Wall.,  573,  it  is  held  that  shares 
in  a  iN'ational  bank  may  be  taxed  to  the  holder,  although  the 
whole  capital  is  invested  in  securities  of  the  National  Govern- 
ment, which  an  act  of  Congress  declares  to  be  exempt  from  tax- 
ation by  State  authority." 

This  being  the  doctrine  as  it  now  universally  prevails,  the 
Revenue  Acts  of  the  State  establishing  the  method  of  taxation 
applicable  to  banks  provide  that  the  shares  of  stock  of  all  banks 
of  this  State,  both  State  and  jSTational,  shall  be  taxed  as  the 
property  of  the  individual  owners,  and  for  that  purpose  said 
shares  shall  be  assessed  at  their  market  value,  and,  if  they 
have  no  market  value,  then  at  their  actual  value ;  that  this 
actual  value,  when  there  is  no  market  value,  shall  be  ascer- 
tained and  determined  by  adding  together  the  capital  stock,  sur- 
plus and  undivided  profits  and  deducting  therefrom  the  value 


14 

of  the  real  and  personal  property  on  which  it  pays  tax  under 
local  assessment,  and  insolvent  debts,  if  properly  itemized  and 
sworn  to,  may  also  be  deducted. 

It  will  be  noted  here  that  the  shares  of  stock  are  assessed  and 
taxed,  and  the  deductions  are  to  be  made  only  in  determining 
the  value  of  these  shares  as  property  of  individual  owners,  and 
separate  and  distinct  from  the  property  and  assets  of  the  bank, 
and  the  only  deductions  allowed  by  the  law  are  the  real  and 
personal  property  locally  assessed  and  taxed  and  insolvent  debts. 

This,  then,  being  the  provision  of  the  law  under  which  the 
taxes  are  assessed,  the  Legislature  of  1909  enacted  chapter  510, 
Laws  1909,  entitled,  "An  act  to  issue  bonds,  etc.,  to  care  for  the 
insane  of  the  State";  and,  after  providing  for  such  issue  to  an 
amoimt  of  $500,000,  the  statute  contains  the  following  section : 

"Sec.  4.  The  said  bonds  and  coupons  shall  be  exempt  from 
all  State,  county  or  municipal  taxation  or  assessment,  direct  or 
indirect,  general  or  special,  whether  imposed  for  purposes  of 
general  revenue  or  otherwise,  and  the  interest  paid  thereon 
shall  not  be  subject  to  taxation  as  for  income,  nor  shall  said 
bonds  and  coupons  be  subject  to  taxation  when  constituting  a 
part  of  the  surplus  of  any  bank,  trust  company  or  other  cor- 
poration." 

It  is  contended  that  under  and  by  virtue  of  this  provision, 
the  bonds  to  be  issued  imder  this  act  shall  not  be  considered 
in  determining  the  value  of  shares  in  the  hands  of  individual 
owners  for  purposes  of  taxation  under  the  revenue  laws  above 
referred  to. 

This  being  a  claim  for  exemption  from  taxation,  it  can  only 
be  allowed  in  case  the  claim  is  clearly  established.  R.  R.  v. 
Allshrook,  110  N.  C,  137 ;  R.  R.  v.  Missouri,  120  U.  S.,  569 ; 
R.  R.  V.  Supervisors,  93  U.  S.,  595 ;  Judson  on  Taxation,  sec.  86. 

In  AUshrooTc's  case,  supra,  it  was  held: 

"2.  The  grant  of  an  exemption  from  taxation  must  be  ex- 
pressed by  words  too  plain  to  be  mistaken ;  if  a  doubt  arise  as 
to  the  intent  of  the  Legislature,  that  doubt  must  be  resolved  in 
favor  of  the  State." 

In  R.  R.  V.  Missouri,  supra,  it  was  held : 

"Immunity  from  taxation  will  not  be  recognized  unless 
granted  in  terms  too  plain  to  be  mistaken." 

These  decisions,  while  quoted  as  indicating  the  only  condi- 
tion under  which  an  exemption  from  taxation  should  ever  be 
allowed,  can  hardly  be  considered  apposite  to  the  question  pre- 
sented ;  for,  bearing  in  mind  that  cardinal  principle  that  shares 
of  stock  in  the  hands  of  individual  owners  are  entirely  distinct 
from  property  of  the  bank,  the  statute  in  question  nowhere  pro- 
vides that  the  valuation  of  these  shares,  as  the  property  of  the 
individual  holders,  should  be  in  any  way  diminished  by  reason 
of  the  ownership  of  the  bonds  in  question  on  the  part  of  the 


15 

banks,  nor  in  my  opinion  does  it  use  words  that  justify  or  per- 
mit of  any  doubt  on  that  question.  The  section  quoted  pro- 
vides : 

1.  That  the  bonds  shall  be  exempt  from  all  taxation,  direct 
or  indirect,  etc. 

2.  That  the  interest  thereon  shall  not  be  subject  to  taxation 
as  for  income. 

3.  Nor  shall  they  be  taxed  when  constituting  a  part  of  the 
surplus  of  the  bank. 

And  in  language  both  plain  and  explicit  these  are  all  the 
exemptions  which  the  statute  sanctions  or  allows.  There  is 
nothing  obscure  or  ambiguous  in  them,  and  in  such  case  the 
courts  have  no  power  to  add  what  is,  to  my  mind,  an  entirely 
distinct  provision,  to  wit :  ''Nor  shall  said  bonds  be  considered 
in  determining  the  value  of  the  shares  when  assessed  and  taxed 
as  the  property  of  the  individual  stockholders." 

The  first  exemption  specified  in  the  law,  "shall  not  be  subject 
to  taxation,  direct  or  indirect,"  comes  clearly  under  the  deci- 
sions referred  to,  which  hold  that  United  States  Government 
bonds  shall  not  be  deducted  in  estimating  the  value  of  the  shares 
in  National  banks  for  purposes  of  taxation.  An  exemption  by 
statute  cannot  be  expressed  in  terms  more  comprehensive  and 
searching  than  that  which  arises  from  the  principle  that  the 
bonds  of  our  National  Government  may  not  be  taxed  by  the 
States.  Such  a  power  involves  its  very  existence  as  an  inde- 
pendent sovereignty,  and,  notwithstanding  this,  these  bonds, 
when  oviTied  by  a  bank,  are  not  deducted  in  determining  the 
value  of  the  shares,  because,  as  stated,  the  shares  are  an  entirely 
distinct  and  separate  species  of  property. 

The  terms  of  the  second  exemption  in  the  statute  are  not 
relevant  to  the  discussion,  and  the  third,  "Nor  shall  the  bonds 
be  taxed  when  constituting  part  of  the  surplus  of  the  bank,"  in 
clear  and  express  terms  applies  to  the  bonds  when  constituting 
part  of  the  coi-porate  property,  and  in  no  way  affects  the  valua- 
tion of  the  shares,  which  are  the  property  of  the  individual. 

It  is  insisted,  in  support  of  the  proposed  change  from  the 
express  terms  of  the  law,  that  unless  it  shall  be  interpreted  as 
affecting  the  valuation  of  the  shares  it  would  be  meaningless; 
and  it  is  further  urged  that  the  history  of  this  legislation  and 
the  action  of  the  Executive  Departments  of  the  State  Govern- 
ment should  lend  force  to  the  position  taken  in  the  principal 
opinion ;  but  these  are  considerations  and  rules  of  construction 
and  intei-pretation  permissible  only  when  the  language  of  a 
statute  is  of  doubtful  meaning,  and  have  no  place  when  its  ex- 
pressions are  plain  and  do  not  permit  of  construction. 

In  Black  on  Interpretation  of  Laws,  sec.  26,  quoted  with  ap- 
proval In  re  Applicants  for  License,  143  N.  C,  3,  it  is  said: 


16 


"Sec.  26.  The  meaning  of  a  statute  must  first  be  sought  in 
the  language  of  the  statute  itself. 

"And  further:  'If  the  language  is  plain  and  free  from  ambi- 
guity and  expressed  a  simple,  definite  and  sensible  meaning,  that 
meaning  is  conclusively  presumed  to  be  the  meaning  which  the 
Legislature  intended  to  convey.' 

"And  in  Lewis'  Southerland  Statutory  Constiniction  (2  Ed.), 
sec.  267,  it  is  said:  'When  the  intention  of  the  Legislature  is  so 
apparent  from  the  face  of  the  statute  that  there  can  be  no  ques- 
tion as  to  its  meaning,  there  is  no  room  for  construction.'  " 

In  2IcClusl-ey  v.  Cornwell,  11  ]Sr.  Y.,  601,  Allen,  J.,  quotes 
with  approval  the  rule  as  expressed  by  Johnson,  J.,  in  Newell 
V.  The  People,  3  Selden,  1897,  as  follows: 

"Whether  we  are  considering  an  agi'eement  between  parties, 
a  statute  or  a  constitution,  with  a  view  to  its  interpretation,  the 
thing  we  are  to  seek  is  the  thought  which  it  expresses.  To 
ascertain  this,  the  first  resort,  in  all  cases,  is  to  the  natural 
signification  of  the  words  employed,  in  the  order  and  grammat- 
ical arrangement  in  which  the  framers  of  the  insti-ument  have 
placed  them.  If  thus  regarded  the  words  embody  a  definite 
meaning,  which  involves  no  absurdity  and  no  contradiction  be- 
tween different  parts  of  the  same  writing,  then  that  meaning 
apparent  upon  the  face  of  the  instrument  is  the  one  which  alone 
we  are  at  liberty  to  say  was  intended  to  be  conveyed." 

And  in  the  same  opinion  it  is  said  further : 

"In  the  construction  both  of  statutes  and  contracts,  the  in- 
tent of  the  framers  and  parties  is  to  be  sought  first  of  all  in  the 
words  and  language  employed,  and  if  the  words  are  free  from 
ambiguity  or  doubt,  and  express  plainly,  clearly  and  distinctly 
the  sense  of  the  framers  of  the  instrument,  there  is  no  occasion 
to  resort  to  other  means  of  interjiretation.  It  is  not  allowable 
to  interpret  what  has  no  need  of  interpretation,  or,  when  the 
words  have  a  definite  and  precise  meaning,  to  go  elsewhere  in 
search  of  conjecture  in  order  to  restrict  or  extend  the  meaning. 
Statutes  should  be  read  and  understood  according  to  the  nat- 
ural and  most  obvious  import  of  the  language,  without  resorting 
to  subtle  and  forced  construction  for  the  purpose  of  either  lim- 
iting or  extending  their  operation." 

These  views  are  quoted  with  approval  both  in  the  opinion  and 
dissenting  opinions  in  Nance  v.  R.  R.,  149  JST.  C,  366,  and  ex- 
press a  well-recognized  principle  of  law.  As  heretofore  stated, 
there  is  nothing  in  the  statute  which  in  express  terms,  or  by  any 
permissible  intendment,  refers  to  the  omission  of  these  bonds  in 
determining  the  value  of  shares  when  taxed  as  the  property  of 
individual  holders,  and  the  courts,  in  my  opinion,  are  without 
power  to  add  such  a  provision  to  the  law. 


17 

Speaking  generally  to  tlie  question  presented,  Associate  Jus- 
tice PecMiam,  delivering  the  opinion  of  the  Court  in  Banlc  of 
Commerce  v.  Tennessee,  161  U.  S.,  146-147,  says: 

"These  cases  show  the  principle  upon  which  is  founded  the 
mle  that  a  claim  for  exemption  from  taxation  must  be  clearly 
made  out.  Taxes  being  the  sole  means  by  which  sovereignties 
can  maintain  their  existence,  any  claim  on  the  part  of  any  one 
to  be  exempt  from  the  full  payment  of  his  share  of  taxes  on 
any  portion  of  his  property  must  on  that  account  be  clearly 
defined  and  founded  upon  plain  language.  There  must  be  no 
doubt  or  ambigTiity  in  the  language  used  upon  which  the  claim 
to  the  exemption  is  founded.  It  has  been  said  that  a  well- 
founded  doubt  is  fatal  to  the  claim;  no  application  will  be  in- 
dulged in  for  the  purpose  of  construing  the  language  used  as 
giving  the  claim  for  exemption,  where  such  claim  is  not  founded 
upon  the  plain  and  clearly  expressed  intention  of  the  taxing 
power. 

"The  capital  stock  of  a  corporation  and  the  shares  into  which 
such  stock  may  be  divided  and  held  by  individual  shareholders 
are  two  distinct  pieces  of  property.  The  capital  stock  and  the 
shares  of  stock  in  the  hands  of  the  shareholders  may  both  be 
taxed,  and  it  is  not  double  taxation.  Van  Allen  v.  Assessors, 
3  Wall.,  573 ;  People  v.  Commissioners,  4  "Wall.,  244,  cited  in 
Farrington  v.  Tennessee,  95  TJ.  S.,  687. 

"This  statement  has  been  reiterated  many  times  in  various 
decisions  by  this  Court,  and  is  not  now  disputed  hy  any  one. 

"The  sui-plus  belonging  to  this  bank  is  'corporate  property,' 
and  is  distinct  from  the  capital  stock  in  the  hands  of  the  cor- 
poration. The  exemption,  in  terms,  is  upon  the  payment  of  an 
annual  tax  of  one-half  of  one  per  cent  upon  each  share  of  the 
capital  stock,  which  shall  be  in  lieu  of  all  other  taxes.  The 
exemption  is  not,  in  our  judgment,  greater  in  its  scope  than  the 
subject  of  the  tax.  Recognizing,  as  we  do,  that  there  is  a  dif- 
ferent property  in  that  which  is  described  as  capital  stock  from 
that  which  is  described  as  corporate  property  other  than  capital 
stock,  and  remembering  the  necessity  there  is  for  a  clear  expres- 
sion of  the  intention  to  exempt  before  the  exemption  will  be 
granted,  we  must  hold  that  the  surplus  has  not  been  granted 
exemption  by  the  clause  contained  in  the  charter  under  discus- 
sion. The  very  name  of  surplus  implies  a  difference.  There 
is  capital  stock  and  there  is  a  surplus  over,  above  and  beyond 
the  capital  stock,  which  surplus  is  the  property  of  the  bank 
until  it  is  divided  among  stockholders." 

There  is  no  one  who  is  more  jealous  for  the  honor  and  repu- 
tation of  this  State  and  its  government  than  the  writer.  I 
know  full  well  that  it  is  their  desire  and  fixed  purpose  to  meet 
every  obligation  and  duty  incumbent  upon  them  as  an  enlight- 


18 

ened,  progressive  and  Christian  people,  and  where  such  pur- 
pose has  been  enacted  into  law  their  courts  should  at  all  times 
and  under  all  circumstances  be  swift  to  enforce  it;  but  this 
sentiment,  deep  as  it  is,  does  not  permit — on  the  contrary,  it  for- 
bids— that  in  expounding  their  laws  we  should  depart  from 
fixed  principles  of  interpretation,  or  read  into  their  statutes  an 
effect  and  meaning  contrary  to  the  clear  import  of  their  terms. 
I  am  of  opinion  that  the  judgment  below  should  be  affirmed. 


Uissatisiaction. 

To  tho  Editor:  It  seems  probable 
that  the  age  limit  aa  extended  will  in- 
clude those  from  18  to  21.  There  is  al- 
ready talk  of  exempting  those  who  oth- 
erwise would  go  to  college. 

I  am  old  enough  to  remember  during 
the  Confederacy,  when  an  exemption 
was  made  of  those  who  owned  fifteen 
negroes.       The     specious     excuse     then 


those  17  years  of  age. 

JjaFaye'tte  was  a  major  general  in  th 
I 'uitod "states  army,  commanding  a  divi 
sion  of  four  brigades  when  he  was  1 
years  old. 

In  the  Confederate  army,  as  a  matte 
of  fact,  there  were  hundreds,  possibl 
thousands,  under  17.  1  entered  the  Con 
federate  army  myself  at  14,  and  thoug 


negroes.  Ihe  specious  excuse  then.j  resigned  being  under  military  ag( 
made  was  that  they  were  doing  more^^j^^i  j,^  September,  18G3,  went  to  th 
for  the  Confederacy  by  supervising  the  wrjj-^,g^gi^y    f^r    nine    months    in   an    a1 


raising  of  supplies  and  preventing  any). 
possible  insurrection  among  the  ne- 
groes. This  did  not  deceive  the  public 
for  it  was  instantly  undetstood  that  it 
was  an  exemption  of  a  favored  and 
privileged  class.  No  heavier  blow  was 
ever  struck  the  Confederacy  by  the 
enemy. 

Our  college  professors  naturally  think 
that  the  colleges  should  be  kept  up  and 


.empt  to  complete  my  education,  th 
very  next  day  after  the  spring  ten 
closed  in  18(i4,  I  again  joiiied  the  arm 
and  "saw  it  through,"  being  parole 
with  .Johnston's  army,  May,  1865,  bein 
then  18  years  of  age.  There  Avere  man 
others  with  a  similar  record  as  to  agi 
Dr.  Dixon,  the  late  Auditor,  being  on 
of  them.  Among  those  still  living  ai 
Capt.   .1.   J.     Laughinghouse,     of     Pitt 


fond  fathers  and  mothers  naturally  ue-j^^^^   ^  A.  Bristol,  clerk  of  the  supenr 
'lieve  that  their  sons  will  bo  better  em-  ^^^^.^    J^    Burke,   and    others.     In    ISC 
ployed   and    safer    in    the    college    lialls ,  ^^^^^  .g^   North  Carolina  had  at  the  fror 
than  on  the  German  front.    But,  the  boy  '  -  '  ^ 

between  the  plow  handles,  who  may  be  , 
the    chief   laborer    on    the    farm    or   the  1 


over    4,000    Junior    Reserves,    boys    1 
j years   old;,     and     better      and     brave 


the  chief  laborer  on  the  farm  or  the  Ig^j^-^j.^  ^^^^^^  stepped  into  a  line  c 
support  of  a  widowed  mother,  is  doing j'^^^^j^^  j  j^^^^  ^  goj^  j,i  ^ijp  Spanish  we 
fully   as   much    for    his   country    out    of  I  -  —  .   ^  ,  i  — .    — 


the  army  as  the  boy  whose  father  isj. 
able  to  send  him  to  college.  A  dis- 
crimination along  these  lines  will  cause 
the  deepest  dissatisfaction,  although 
those  who  will  feci  the  injustice  keenly 
are  not  always  influential  people  and 
may  not  have  much  to  say  in  the  news 


Spanish 
before  he  was  21,  and  I  have  two  sor 
in  this  war,  though  neither  of  them  w£ 
liable  to  the  draft,  one  of  them  bein 
over  31,  and  the  other  was  in  the  d( 
ferred  class.  I  dislike  to  speak  of  pe: 
sonal  matters  but  this  will  show  that 
speak  from  experience  and  have  no  pe: 


may  not  nave  mucn  to  say  in  the  news-  ^'^^^j  interest  to  serve, 
papers.  We  have  no  privileged  class  in  ^^^^  means  discomfort,  dirt,  diseas 
this  country  and  should  have  none  andK^^^  .  possible  mutilation  or  deat: 
the  son  of  the  laborer  or  the  farmer !  j^^^^^j^^^.^  ^^  ^^  illusion,  it  is  no  dre; 
should  not  be  sent  to  the  army  if  the-  .^^^^  rpj^^  ^^.  ,^o,_,,g  thing  about  i 
son  of,  the  man  who  is  wealthy  enough   ^^,    ,'   ,    •     ;„,,„„,i   noble  and  grand, 


.  -  ,  igli 

to  educate  him,  is  kept  out  of  tlie  war. 
"Equal  rights  to  all  and  special  privi- 
leges to  none,"  was  never  more  vitaP 
than  in  this  matter  of  the  drafting  ol| 
young  men  into  the  army.  ' 

While  we  have  no  governing  class  in 
this  country,  the  lawyers  come  very 
nearly  being  such,  since  they  furnish 
more  than  60  per  cent  of  our  members 
of  '"^ongress,  Presidents,  members  of  the' 
Legislature  and  (idvernors.  There  is 
already  soine  dissatisfaction  expressed 
rthat  "so  many  young  lawyefs  who  should 
be  at  the  front  have  shunted  themselves 
off  into  safe  berths,  out  of  cannon 
range,  as  judge  advocates  to  try  other 
men  for  military  offenses,  and  there  ia 
deeper  dissatisfaction  at  the  large  num- 
ber of  rosy  cheeked,  well  fed,  Avell  ^iress- 
ed  3'oung  colonels,  majors  and  captains, 
who  occupy  swivel  chairs  at  Washington 
and   elsewhere. 

There  is  a  difference  of  opinion  ex- 
pressed whether  men  from  18  to  21 
should  be  taken.  It  is  the  military  ex- 
perience  of  the  ages  that  there  are  no 


and,  that  is  indeed  noble  and  grand, 
that  such  service  is  for  others  and  f( 
one's  country.    Is  it  wise  or  just  or  pn 
dent  to  exempt  those  whose  fathers  a' 
able  to  send  them  to  college,  while  sul 
jecting  the  sons  of  those  who  are  not 
the  burden  of  the  battle?     The  workii 
classes    are    more    intelligent   than    ev 
and  will  be  quick  to  resent  injustice  - 
discrimination.     They  know  their  poi 
er.      In    the    face    of    the    democracy    ' 
that  death  where  "the  bullet  knows  J 
brother,'  let  us  have  the   democracy 
equality  in  the  draft  for  duty. 

The  only  true  nobility  is  the  nobili 
of    service',    and    the    nobility    of    Gre 
Britain  are  measuring  up  to  that  stan 
ard.     The   casualty   list   of  members 
the  families  in  the  House  of  Lords  rea 
like  that  at  Crecy,  or  Agincourt.     Ha 
ing  recently  to  write  to  the  Marquess 
Dowushire'  (not    having    heard    of    1 
death)   the  Marchioness  herself  polite 
answered   my  letter,  giving  as  her   re 
sou  that  her  son,  the  new  Marquess, 
boy  17   or   18)    was  "in   France,   drivi: 
an'  ambulance."     Lot    us    not    have 


President  E.  K.  Graham, 

Mi'.  Dear  Mr.  President :— Your 
esteemed  favor  received.  3  do 
not  underestimate  the  value  of 
education,  but  it  seems  to  me : 

1.  The  Government  is  con- 
scripting two  millions  of  young 
men  from  18  to  21  to  fight  the 
Germans,  and  not  to  educate 
them. 

2.  If  all  were  to  be  sent  to  col- 
leges, there  are  not  enough  col- 
leges anl  professors  to  take  charge 
of  them* 

3.  Only  a  small  per  cent  of 
them  are  sufficiently  educated  to 
enter  college.  The  result,  would 
be  that  those  who  have  had  the 
advantage  of  education  will  be 
exempted  for  an     indefinite     pe- 

J  nod,  possibly  until  the  war  is 
iover,  while  those  not  so  fortunate 
Wffl  u^  stopping  German  bullets. 

Sending  young  men  to  "trs inX 
ing  camps  for  officers"  does  not 
mean  sending  them  to  college. 
That  will  re(iuire  only  90  days 
and  will  not  detain  them  from 
service.  The  training  is  military 
and  not  collegiate.  To  send  to 
college  for  an  indefinite  period 
those  who  have  a  suffiicent  edu- 
cation to  enter  college  will  be  a 
special  privilege  to  a  small  class. 

In  my  opinion  this  will  be  as 
dangerous  as  the  exemption 
given  to  the  "owners  of  15  ne- 
groes" under  the  Confederacy. 

So  far,  there  has  been  little 
class  discrimination,  and  while 
there  is  undoubtedly  some  feeling 
against  the  war  among  many  who 
do     not     comorehend     fiillv     thn 


most  dangerous  experiment. 

My  people  were  slave     owners, 
but  in   my   own   case    I   did    not' 
claim   an   exemption  on   that   ac 
count   nor   that    1    might   get   an 
education.     1  believe  that  the  ex- 
cmtpion   of    "college     students" 
would  be  a  most  serious  error,  for 
the  industrial  and  working  classes 
are  More  intelligent,  more  num- 
fei^^is  an<i  f*r    hett^er    bi^a'ni^fed 
than  ever  before.     They  will  not 
stand  for  it. 

I  know  you     will     understand  j 
from  this  that  my  reasons  are  pa- 
triotic and  not  personal.     It  is  a 
question  in  my  opinion  of  justice 
and  sound  public  policy. 
Most  truly  yours, 

WALTER  CLARK. 
Raleigh,  Aug.  27.  ' 

The  letter  of  Chief  Justice  Wal- 
ter Clark  in  reply  to  a  corarauni-  i 
cation  to  the  Chief  Justice  from 
President  E.  K.  Graham  of  the 
State  University  is  given  else- 
where. 

The  controversy  between  these 
very  distinguished  men  is  at 
tracting  considermg  attention. 

As  we  see  it  Justice  Clark  is 
right,  and  we  are  glad  that  so 
talented  and  influential  a  man  in 
his  high  position  comes  out  bold- 
ly for  justice  and  fairness  in  the 
administration  of  the  draft  law. 

The  injustice  to  the  boy  under 
twenty-one  years  of  age  who  may 
not  go  to  college  is  so  clearly 
pointed  out  and  discussed  by 
Judge  Clark  that  we  have  little 
to  add  in  commending  his  posi- 
tion.     THE  HARNETT  POST. 


/ 


CHILD  LABOR 


DANGEROUS  PLACE  TO  WORK  IN— PETTIT  v.  R.  R., 
156  N.  C,  133 


Chief    Justice    Clark    Holds    that    a    Railroad    Company    Should    be 

Held   Responsible  When,  to   Keep  Down  the   Price  of  Other 

Labor,   it   Puts  an    11-Year-Old    Boy  to   Work   in   a 

Dangerous  Place,  Where  He  is  Soon  Killed 

— Judge    Hoke   Agrees   With   the 

Chief  Justice. 


Clark,  C.  J.  (dissenting).  The  plaintiff  was  not  accorded  the  privi- 
lege of  a  jury  trial  to  determine  tlie  facts.  Therefore  the  evidence 
must  be  taken  in  the  most  favorable  aspect  for  him  and  in  the  light 
of  the  most  favorable  inferences  which  could  have  been  drawn  tliere- 
from  by  the  jury.  His  intestate  was  a  child,  small  for  his  age.  which 
was  under  12,  and  had  not  fallen  off  knee  pants.  He  was  employed 
at  South  Rocky  Mount  to  carry  messages  across  a  yard  filled  with 
IS  or  20  tracks,  with  engines  and  trains  moving  backwards  and  for- 
wards every  few  minutes.  Among  these  were  through  trains,  and  also 
the  shifting  engines,  moving  freight  and  passenger  cars  to  make  up 
trains.  His  duties  required  him  to  carry  messages  over  and  across 
this  yard.  A  more  deadly  and  perilous  place  could  not  be  imagined. 
Such  duty  would  have  taxed  the  discretion  and  judgment  of  a  much 
maturer  person.  The  defendant  did  not  attempt  to  show  that  it 
had  given  the  child  any  caution  or  instruction  whatever. 

In  FitsgeraU  v.  Furniture  Co.,  131  N.  C,  640,  42  S.  E.,  947,  this 
Court  cited  with  approval  the  following  language  from  Thompson  on 
Negligence :  "The  law  puts  upon  a  master,  when  he  talvcs  a  child 
into  his  service,  the  duty  of  explaining  to  him  fully  the  hazards  and 
dangers  connected  with  the  business  and  of  instructing  him  how  to 
avoid  them.  Nor  is  this  all ;  the  master  will  not  have  discharged  his 
duty  in  this  regard  unless  the  instructions  and  precautions  given  are 
so  graduated  to  the  youth,  ignorance,  and  inexperience  of  the  employee 
as  to  malie  him  fully  aware  of  the  danger  to  him,  and  to  place  him, 
with  reference  to  it,  in  substantially  the  same  state  as  if  he  were  an 
adult."  This  being  a^  duty  devolving  upon  the  defendant,  the  burden 
was  upon  it  to  show  that  such  caution  was  given,  and  its  nature. 
But  nothing  of  the  Ivind  was  even  attempted  to  be  shown.  It  follows 
that  the  presumption  that  such  caution  was  not  given  is  not  removed. 

In  Ward  v.  Odell,  126  N.  C,  948,  a  child  11  years  old,  employed  in 
a  factory,  in  passing  from  one  part  of  the  mill  to  another  stopped  for 


a  mouieut  at  a  bench  where  a  wire  was  being  cut,  when  a  piece  of  wire 
flew  off  and  put  out  his  eye.  It  was  held  by  Clark,  J.,  that  the 
injury  v\as  conclusive  that  the  work  was  dangerous,  and  that  in  such 
case  "these  little  creatures  exposed  to  such  dangers  against  their  will 
cannot  be  held  guilty  of  contributory  negligence."  Nor  was  it  a  de- 
.feuse  that  the  child  was  hired  to  the  company  by  the  father.  "It  was 
the  child's  eye  which  was  put  out,  not  the  father's.  The  father  could 
not  sell  his  child  nor  give  the  company  the  right  to  expose  him  to 
danger.  The  superintendent  put  these  children  to  work,  knowing 
their  immaturity  of  mind  and  bo<ly,  and,  Avhen  one  of  them  thus  put 
by  him  in  places  requiring  constant  watchfulness  is  injured,  every 
sentiment  'of  justice  forbids  that  the  corporation  should  rely  on  the 
plea  of  contributory  negligence."  If  that  is  ti'ue  as  to  cutting  wires 
in  a  factory  when  the  child  was  not  on  duty  at  the  time,  it  is  neces- 
sarily so  as  to  the  danger  ten  times  more  deadly,  of  crossing  IS  to  20 
tracks  with  engines  and  cars  constantly  moving  backwards  and  for- 
wards and  when  the  child's  duties  re<iuired  him  to  cross  the  tracks. 

On  this  occasion  there  was  no  eye-witness  how  the  child  was  killed, 
but  he  was  found  dead  upon  one  of  these  tracks  with  his  leg  cut  off. 
The  inference  is  irresistible  that  he  was  killetl  by  a  passing  train. 
Powell  V.  R.  R.,  125  N.  C,  370.  If  there  could  be  any  possible  doubt 
about  it,  the  evidence  was  certainly  sufficient  to  be  submitted  to  a 
jury  to  draw  the  inference.  The  little  child  being  found  dead  with 
his  leg  cut  oft"  in  such  a  network  of  tracks,  among  constantly  shifting 
trains,  creates  as  strong  a  presumption  that  his  leg  was  cut  off  by 
one  of  these  trains  as,  when  a  soldier  is  found  dead  on  a  battlefield 
with  a  bullet  through  his  head,  that  he  was  killed  by  the  enemy. 

It  is  urged  that  it  is  not  shown  that  tiie  little  boy  in  his  knicker- 
bockers was  on  duty,  because  there  is  evidence  tending  to  show  that 
he  was  killed  on  Sunday  morning.  The  opinion  of  the  Court  says: 
"No  one  testifies  that  he  was  killed  on  Sunday.  We  assume  it."  Yet 
nothing  is  better  settled  than  that  nothing  can  be  assumed  against 
the  plaintiff  on  a  nonsuit.  The  evidence  is  that  he  was  employed  to 
carry  dispatches  across  these  tracks.  The  very  nature  of  the  work 
as  a  necessity  in  operating  trains  is  conclusive  that  it  was  carried  on 
every  day.  There  is  no  evidence  whatever  that  these  messages  were 
not  required  to  be  sent  on  Sunday  as  well  as  on  other  days.  It  is 
well  known  that  these  through  trains,  and  that  also  the  shifting  of 
cars  and  engines  on  these  tracks,  are  operated  on  Sunday,  as  well  as 
on  other  days.  His  duty  was  such  as  could  not  cease  on  Sunday. 
Reference  to  the  decisions  of  this  Court  will  show  cases  in  which  this 
defendant  was  sued  for  the  penalty  in  sending  out  its  freight  trains 
from  this  very  yard  on  Sunday,  and  the  defense  was  upheld  that  it 
had  a  right  to  send  out  through  freight  trains.  The  statute  also  per- 
mits the  dispatching  of  both  local  and  through  passenger  trains.  It 
is  in  evidence  in  this  case  that  other  laborers  were  present  on  the 
yard  that  morning.  Taking  the  evidence  in  the  light  most  favorable 
to  the  plaintiff,  it  is  a  reasonable  inference  that  the  child  was  there 


iu  the  performauce  of  the  duty  of  carryiug  messages  from  one  office 
to  another  across  these  tracks  at  the  time  of  his  death.  It  is  not 
shown  that  he  had  occasion  to  go  there  for  any  other  purpose,  nor  is 
it  reasonable  to  suppose  that  after  his  arduous  labors  on  these  other 
days  he  would  have  revisited  this  spot  on  the  morning  in  question  as 
a  matter  of  sport  or  play.  The  child  was  killed  where  he  was  re- 
quired to  do  his  work.  If  for  any  reason  he  was  not  at  work  at  that 
spot  on  that  day,  it  was  the  duty  of  the  defendant  to  show  it,  and  it 
could  have  readilj^  done  so,  if  such  was  the  fact.  It  did  not  attempt 
to  make  such  proof. 

It  was  also  suggested  that  the  child  might  have  been  killed  by 
jumping  up  on  one  of  the  passing  trains.  One  witness  testified  that 
he  saw  him  riding  on  one  of  the  shifting  trains  that  morning.  But 
there  is  no  evidence  that  he  was  killed  while  doing  so,  and,  even  if  it 
had  been  shown  that  he  was  killed  while  so  riding,  this  would  have 
been  contributory  negligence,  which  this  Court  held  in  Ward  v. 
Odell,  126  N.  C,  946,  32  S.  E.,  194,  could  not  be  set  up  against  a  child 
under  12  years  of  age.  Besides,  contributory  negligence  must  be 
proven  by  the  defendant.  Rev.,  483.  The  Court  refers  to  "state- 
ments in  the  answer,"  as  if  the  answer  was  evidence. 

If  we  are  to  observe  Judge  Daniel's  wise  injunction,  quoted  by  the 
Court,  "that  we  should  not  be  wiser  than  the  law,"  we  will  not  re- 
verse the  humane  decisions  of  this  Court,  above  quoted,  in  order  to 
defeat  a  recovery  for  the  death  of  the  little  sufferer  who  by  the 
avarice  of  the  defendant  was  sent  to  his  death  by  exposure  to  an 
accumulation  of  perils  greater  to  him  in  his  unguarded  and  un- 
warned innocence  than  that  which  met  the  charging  column  of  brave 
men  on  Cemetery  Ridge.  Many  soldiers  survived  four  years  of  war. 
This  child  was  slain  on  the  fourth  day  of  his  employment. 

It  may  be  asked,  and  it  will  be  asked,  by  future  ages  as  well  as  by 
the  present,  why  an  innocent  child  of  this  immature  age  should  have 
been  subjected  to  such  perils,  so  far  beyond  his  comprehension.  This 
record  gives  the  answer.  His  mother  had  seven  other  children  to 
support.  He  had  a  stepfather.  And,  in  this  combination  of  cir- 
cumstances, the  mother  testifying  that  she  did  not  know  the  danger- 
ous nature  nor  the  character  of  the  employment,  and  indeed  did  not 
consent  to  his  being  employed,  the  defendant  was  able  to  procure  this 
child's  services  for  the  munificent  sum  of  $12.50  per  month.  This 
was  truly  "the  price  of  innocent  blood."  Had  the  defendant  em- 
ployed a  man  or  a  boy  of  mature  years,  it  would  have  had  to  pay  a 
sum  for  his  services  more  in  proportion  to  the  peril.  Such  a  person 
would  have  known  the  dangers  and  would  have  charged  for  the  risk. 

By  employing  these  little  children  the  defendant  is  able  to  cheapen 
to  that  extent,  by  the  competition,  the  price  of  other  labor. 

Nor  is  there  any  reason  shown  why  the  defendant  company  should 
not  have  put  telephones  across  these  tracks,  and  thus  transmitted 
the  messages  without  exposing  any  one  to  such  dangers.  The  only 
answer  to  this  is  the  one  that  was  ineffectually  made  in  the  Troxler 


case  (124  N.  C,  1S9 ;  44  L.  R.  A.,  313;  70  Am.  St.,  5S0),  and  Greenlee 
case  (122  N.  C,  977;  41  L.  R.  A.,  399;  65  Am.  St.,  734),  that  it  wouW 
have  cost  the  defendant  company  some  expenditure  to  put  in  the 
automatic  couplers,  as  here  it  would  cost  a  little  something  to  put  in 
the  telephone.  This  Court  held,  without  any  statute,  but  upon  the 
principles  of  right  and  justice,  in  the  Troxler  and  Greenlee  cases,  that 
it  was  negligence  per  se  to  subject  a  grown  man  to  the  danger  of 
making  a  coupling  without  using  automatic  couplers,  even  when  the 
man  was  insti'ucted  as  to  the  danger,  and  that  in  such  cases  the  rail- 
road company  could  not  set  up  the  defenses  of  assumption  of  risk  or 
contributory  negligence.  This  decision  has  been  followed  in  other 
States  and  is  a  well-settled  law  in  our  own  courts.  Our  law  is 
humane. 

Chief  Justice  Fuller,  not  long  before  his  death,  in  a  case  of  per- 
sonal injury,  in  words  of  burning  conviction,  said :  "It  is  a  re- 
proach to  our  civilization  that  any  class  of  American  workmen 
should,  in  the  pursuit  of  a  necessary  and  useful  vocation,  be  subject 
to  a  peril  of  life  and  limb  as  great  as  that  of  a  soldier  in  time  of 
war."     Johnson  v.  R.  R.,  196  U.  S.,  1. 

A  conservative  estimate  of  the  number  of  workmen  killed  or  maimed 
in  this  country  every  year  in  industrial  accidents  is  about  500,000. 
It  is  said  that  the  total  number  killed  and  wounded  in  the  Union 
Army  during  the  Civil  War  was  385,325.  In  other  words,  the  whole 
Confederate  Army  was  unable  to  kill  and  cripple  as  many  Union  men 
in  four  years  as  are  now  killed  and  crippled  in  industrial  employment 
in  a  single  year.  We  cannot  expect  this  condition  to  improve  if  the 
courts  can  be  induced  to  place  the  blame  upon  those  killed  and 
wounded,  because,  in  order  to  make  a  livelihood,  and  with  a  purpose 
of  obeying  those  for  whom  they  labor,  they  venture  in  dangerous  pur- 
suits, while  under  such  conditions  the  same  courts  relieve  the  master. 
who  created  the  condition  and  gave  the  orders,  of  all  liability  and 
blame  whatsoever. 

The  courts  elsewhere  have  not  yielded  their  assent  to  the  validity 
of  the  considerations  urged  by  the  defendant  in  this  case. 

In  Molaskc  v.  Coal  Co.,  80  Wis.,  220.  it  was  held:  "The  pre- 
sumption is  that  a  boy  under  14  years  of  age  is  not  competent  to 
perform  duties  involving  personal  safety  and  requiring  the  exercise 
of  a  good  degree  of  judgment  and  constant  care  and  watchfulness ; 
and,  in  an  action  for  injuries  resulting  from  negligence  of  a 
boy  so  employed,  the  burden  is  upon  his  employer  to  show  that  he 
was  in  fact  competent.  Further,  no  usage  to  employ  boys  of  such 
tender  years  to  perform  such  duties  can  be  upheld."  Here  the  boy 
was  under  12,  instead  of  14;  no  negligence  by  him  was  shown,  and 
no  usage  to  employ  boys  of  such  age  for  such  duties. 

In  Wayne  v.  Conklin,  86  Ga.,  40,  it  was  held :  "Whether 
a  boy  of  13  employed  by  the  defendant  to  work  in  a  tinshop 
was  of  sufficient  age  and  capacity  to  appreciate  his  hazard  and 
provide  against  danger   is   for   the  consideration   of   the   jury."     In 


this  case  the  boy  was  uacler  12,  and  the  danger  to  which  he  was 
exposed  was  full  an  hundredfold  greater  than  that  in  a  tinshop ;  and 
a  North  Carolina  jury  in  all  justice  should  have  considered  and  de- 
termined the  question  whether  he  was  "of  sufficient  age  and  capacity 
to  appreciate  his  hazard  and  provide  against  the  danger"  to  which 
he  was  exposed. 

In  Gotf  V.  R.  R.  (C.  C),  3G  Fed.,  289,  it  was  held  an  act  of  negli- 
gence on  the  part  of  a  railroad  company  to  take  into  its  employment 
as  a  brakeman  a  minor  of  such  tender  years  as  to  not  know  the  risk 
of  the  service. 

The  rule  established  by  Bare  v.  Coal  Co.,  61  W.  Va.,  28,  8  L. 
R.  A.  (N.  S.),  2S4,  12.3  Am.  St.,  066,  that  "it  is  actionable  negli- 
gence for  an  employer  to  engage  and  place  at  a  dangerous  employ- 
ment a  minor  who  lacks  sufficient  age  and  capacity  to  compre- 
hend and  avoid  the  dangers  of  such  employment,  even  though  the 
employer  instructs  him  as  to  the  dangers  incident  to  the  work,"  is  a 
well-established  rule,  being  laid  down  in  Labatt  on  Master  and  Serv- 
ant, sec.  251;  S.  and  Redf.  Neg.  (oth  Ed.),  sec.  219;  4  Thomp.  Neg., 
sees.  3826,  4093,  4689;  Bailey,  Pers.  Inj.,  sees.  2758-2777;  Dresser, 
Employers'  Liability,  466;  Buswell,  Pers.  Inj.,  sec.  203;  2  Cooley, 
Torts  (3d  Ed.),  1130,  1131;  20  A.  and  E.  Enc.  (3d  Ed.),  299. 

It  is  a  question  for  the  jury  to  say  whether  or  not  the  deceased 
could  appreciate  the  dangers  and  knew  how  to  avoid  them.  Turner  v. 
R.  R.,  40  W.  Va.,  675 ;  4  Thomp.  Neg.,  sec.  4098. 

The  place  where  the  child  was  put  to  work  being  a  dangerous  one, 
the  question  w^as  open  for  the  jury  to  pass  upon  the  negligence  of  the 
defendant.  Cahill  v.  Stone  Co.,  153  Cal.,  571,  19  L.  R.  A.  (N.  S.), 
1094 ;  Lynch  v.  Nnrdin,  1  Q.  B.,  29 ;  Pressly  v.  Yarn  Mills,  138  N.  C, 
410. 

In  this  case  a  child  under  12  years  of  age,  undergrown,  and  there- 
fore known  to  be  immature,  was  set  to  work  by  the  defendant  in  a 
most  dangerous  place,  exposed  to  be  run  over  by  the  constantly  pass- 
ing trains  and  shifting  engines  crossing  eighteen  or  more  tracks,  to 
carry  messages  which  might  have  been  sent  by  telephone.  He  was 
found  dead  on  the  track  in  the  yard  with  his  leg  cut  off.  Under 
our  decisions  the  company  could  not  show  contributory  negligence,  and 
did  not  offer  to  show  any.  It  was  the  duty  of  the  company  to  show 
that  they  had  instructed  any  employee,  much  more  a  child,  placed  in 
such  employment,  of  its  dangers.  The  defendant  did  not  show  this. 
The  work  was  of  a  nature  which  required  employment  on  Sunday  as 
on  other  days.  The  child  being  found  dead  where  he  would  be  pass- 
ing in  carrying  his  messages,  if  he  was  killed  that  day  or  not  at 
work  that  day  the  burden  was  upon  the  defendant  to  show  it.  The 
defendant  did  not  offer  to  do  so.  Upon  all  the  evidence,  taken  in  the 
light  most  favorable  to  the  plaintiff,  it  would  seem  impossible  to  con- 
clude that  there  was  not  more  than  a  scintilla  of  evidence  tending  to 
show  negligence  on  the  part  of  the  defendant. 

Hoke,  J.,  concurs  in  dissenting  opinion  of  Clark,  C.  J. 


THE  CONFEDERATE  SOLDIER. 


But  they  say  that,  nevertheless,  we  failed.  The  Confed- 
eracy failed,  but  not  the  Confederate  Soldier.  Your  past 
is  secure.  The  great  soldiers  of  history  are  the  Mace- 
donian Phalanx  of  Alexander  the  Great,  the  Tenth  Legion 
of  Caesar,  the  Ironsides  of  Cromwell,  the  Old  Guard  of 
Napoleon.  The  Confederate  soldier  is  their  worthy  com- 
rade and  their  equal.  The  government  which  each  of 
those  brave  bodies  of  soldiers  served  went  down  into  irre- 
trievable and  utter  defeat,  but  their  fame,  like  yours,  is  im- 
mortal. 

********* 

What  is  true  of  these  great  historic  battalions  is  true, 
Comrades,  of  the  Confederate  soldier.  The  fame  of  the 
soldiers  of  Alexander,  of  Caesar,  of  Cromwell,  of  Napoleon, 
and  the  principles  for  which  they  stood  survived  the 
ephemeral  government  under  whose  banner  they  fought  and 
was  in  nowise  affected  by  its  downfall.  Not  only  has  the 
fame  of  your  valor,  of  your  splendid  soldierly  qualities, 
survived  the  short  life  of  the  Confederacy,  but  the  prin- 
ciple of  local  self-government  has  survived  Appomattox 
and  will  endure  throughout  all  generations. — Extract  from 
Judge  CUirJvS  Speech. 


U.  S.  PENSIONS  FOR  N.  C.  SOLDIERS 

ADDRESS    OF 

CHIEF  JUSTICE  WALTER   CLARK 

TO  CONFEDERATE  VETERANS  AT  CHARLOTTE,  N.  C,  25  AUGUST,  I909 


[Reprinted  from  Charlotte  Papers.  25  August,  1909.] 
Confederate  Veterans,  Comrades,  Ladies  and  Gentlemen: 

Face  to  face  with  the  survivors  of  the  great  armies  of  the  Confed 
eracy,  we  stand  in  the  presence  of  history.     Those  scarred  and  vet- 
eran columns  made  history.     Their  fame  now  belongs  to  the  ages. 

No  place  more  appropriate  for  this  meeting  could  be  found  than  this 
spot,  which  first  on  this  Continent  heard  the  immortal  declaration 
of  the  right  of  freemen  to  govern  themselves,  and  which  witnessed 
the  first  enactment  of  an  Ordinance  of  Secession  on  that  ever  mem- 
orable 20  May,  1775. 

It  is  needless,  soldiers,  for  me  to  attempt  to  recount  the  story  of 
your  great  deeds — to  recall  how  with  600,000  soldiers,  half  fed,  scant- 
ily clothed,  and  unpaid,  you  kept  at  bay  for  four  years  nearly  3,000,000 
of  the  best  furnished  and  best  equipped  troops  the  world  has  ever 
known.  Cut  off  from  the  outside  world  by  the  blockade,  without 
manufactures  except  such  as  we  improvised  in  the  stress  of  war,  with- 
out money  save  depreciated  paper,  unable  to  spare  enough  men  to 
raise  provisions  because  they  were  needed  to  face  the  enemy — with 
nothing  but  our  courage  in  our  hands  and  our  faith  in  God  and  the 
faith  of  our  women  in  us,  we  held  the  line ! 

BASED  ON    FEDERAL   RECORDS. 

What  you  did  may  be  based  on  the  Federal  Records.  Aside  from 
those  killed,  and  those  who  died  from  wounds  in  the  years  after  the 
war,  forty  years  after  the  war  began — that  is,  in  1901 — there  wei'e 
more  than  one  million  of  men  on  the  Federal  pension  rolls,  each  of 
whom  had  sworn  that  he  had  incurred  serious  disability  by  reason 
of  opposing  you,  and  the  truth  of  the  statement  of  each  had  been 
adjudged  to  be  true  after  full  examination  and  report  by  the  proper 
tribunal.  And  even  now,  by  the  last  official  Government  report, 
which  I  have  here,  in  this  year  1909,  over  forty-eight  years,  nearly 
half  a  century,  after  the  war  began,  there  are  on  the  Federal  pension 
rolls  020,000  survivors  of  the  war — more  men  than  your  armies  had  in 
their  ranks  during  the  entire  four  years. 

When  peace  was  made  at  Tilsit,  between  France  and  Russia,  the 
Emperor  Alexander  paraded  his  guard  before  Napoleon.  Pointing 
to  one  tall  veteran  who  had  been  terribly  hacked  by  sword  and 
shot,  he  said  to  Napoleon,  "What  do  you  think  of  soldiers  who  can 
survive  such  wounds  as  those?"     Napoleon  grimly  replied :     "What 


do  you  think  of  soldiers  who  can  give  such  wounds  as  those?"  By 
the  enemy's  own  showing  you  made  it  terribly  unhealthy  for  them 
down  South. 

THE    SOUTH    ALMOST    SUCCEEDED. 

Had  the  South  been  solid,  it  had  succeeded  beyond  question;  but 
from  the  border  States,  Maryland,  that  part  of  Virginia  which  is 
now  West  Virginia,  from  Kentucky,  from  Missouri,  from  East  Ten- 
nessee, from  certain  sections  of  other  States,  and  from  our  colored 
population,  the  North  recruited  over  250,000  troops — nearly  half  as 
many  as  the  whole  Confederacy.  These  were  not  only  taken  from 
our  side,  but  were  added  to  the  overwhelming- numbers  against  us. 
But  even  with  this  defection,  soldiers,  such  were  your  splendid  stay- 
ing qualities  you  would  have  compelled  success  but  for  the  short- 
sightedness of  your  civil  government.  The  battle  was  lost  there, 
and  not  in  front  of  your  lines.  When  in  1861  our  ports  were  still 
open,  we  sent  commissioners  to  England  and  France  to  negotiate  a  loan. 
They  were  instructed  to  negotiate  for  a  loan  of  $15,000,000.  They 
reported  that  a  loan  of  $600,000,000  could  be  negotiated,  but  a  small 
one  could  not  be.  The  foreign  money  lenders  knew  that  if  $600,000,- 
000  were  invested  in  Confederate  bonds  by  French  and  English  cap- 
italists the  goveriunents  of  those  countries  would  never  let  the  Con- 
federacy fail.  Had  we  authorized  the  $600,000,000  loan,  not  only 
would  the  governments  of  England  and  France  have  become  practi- 
cally sureties  to  our  success — for  they  would  never  have  permitted 
.  their  subjects  to  lose  so  large  a  sum — but  we  could  have  kept  our 
currency  at  par  besides  importing  the  best  arms  and  ammunition  and 
other  supplies,  and  could  have  created  a  navy  which  would  have  kept 
our  ports  open.  Had  the  statesmanship  of  the  Confederacy  equaled 
its  splendid  soldiery,  you  would  have  won  independence  ere  the  close 
of  the  second  year  of  the  war. 

But  notwithstanding  this  and  other  blunders  of  the  civil  govern- 
ment, time  and  time  again,  you  nearly  compelled  success.  To  men- 
tion a  few  occasions  only :  At  Shiloh,  in  ]  862,  the  enemy  were  a  dis- 
organized rabble,  fleeing  to  the  unfordable  river  in  their  rear,  and 
the  capture  of  their  entire  army  in  less  than  an  hour  was  inevitable 
when  a  minie-ball  struck  our  leader,  Albert  Sydney  Johnston,  causing 
our  lines  to  halt.  His  successor  delayed  to  renew  the  advance  for 
more  than  an  hour.  In  that  time  the  capable  leaders  of  the  Fed- 
eral army  reorganized  their  lines,  put  confidence  in  their  men,  and 
brought  up  others  so  that  when  we  did  advance  again,  we  met  a  mur- 
derous reception.  If  that  army,  with  Grant  and  Sherman,  had  been 
taken,  the  war  would  have  practically  been  ended.  The  Federal 
army  was  in  utter  flight  again  at  Chickamauga,  and  was  saved  from 
capture  only  by  the  gross  incompetence  of  the  Confederate  general. 
Again,  at  the  battle  of  Chancellorsville  in  May,  1863,  Hooker's  army 
was  demoralized  and  cut  off  from  the  United  States  ford.  The  fall 
of  Stonewall  Jackson  by  a  ball  from  our  own  men,  who  fired  by 


mistake,  stopped  the  advance  at  the  critical  momeut  when  we  were 
on  the  eve  of  capturing  Hooker's  army  and  ending  the  war. 

At  Gettysburg  some  of  our  troops,  among  them  Hoke's  Brigade, 
climbed  Cemetery  Heights  on  the  evening  of  the  second  day.  Had 
Stonewall  Jackson  been  there  we  would  have  held  our  ground  and 
the  enemy  would  have  retreated  precipitately,  and  the  third  day  at 
Gettysburg,  so  fatal  to  the  fortunes  of  the  Confederacy,  would  not 
have  occurred.  Disaffection  was  rife  throughout  the  North.  The 
draft  riots  were  at  that  moment  in  progress  in  New  York.  Had  the 
Federal  army  been  forced  to  retreat  from  Gettysburg  with  Lee's 
army  in  pursuit,  Washington  and  Baltimore  would  have  been  evacu- 
ated and  the  Confederacy  established. 

It  is  generally  thought  that  Gettysburg  was  the  high-water  mark 
of  our  fortunes,  and  that  thereafter  the  fortunes  of  the  Confederacy 
were  hopeless.  But  General  Horace  Porter,  who  was  on  Grant's 
staff  around  Petersburg,  shows  in  his  book  that  as  late  as  the  fall 
of  1864  the  North  was  tired  of  the  war  and  disheartened,  and  that 
McClellan,  the  Peace  Candidate,  would  have  been  elected  over  Lin- 
coln, but  for  the  fall  of  Atlanta  and  Sherman's  march  through 
Georgia — events  which  were  due  to  the  mistake  of  removing  Joseph 
E.  Johnston  from  the  command  of  the  Western  Army. 

It  is  easy  now  to  say  that  our  defeat  was  inevitable  from  the  very 
beginning,  but  nothing  is  farther  from  the  truth.  Success,  time  and 
again,  was  almost  in  our  grasp.  The  qualities  of  our  soldiers  and  of 
our  leaders  would  have  insured  our  independence,  but  as  Napier 
said  of  Napoleon,  "Fortune,  that  name  for  the  unknown  combina- 
tions of  an  infinite  power,  was  wanting  to  us,  and  without  her  aid  the 
designs  of  man  are  as  bubbles  on  a  troubled  ocean." 

Then  there  was  the  Trent  affair,  when  Admiral  Wilkes  took  Mason 
and  Slidell,  our  ministers  to  England  and  France,  oft"  an  English  ves- 
sel at  sea.  No  one  would  have  believed  that  the  United  States  would 
humble  itself  to  apologize  and  restore  the  prisoners.  But  it  did  so. 
If  this  had  not  been  done,  England,  with  her  great  wealth  and  power- 
ful navy,  would  have  entered  the  war  as  our  ally. 

In  1S62.  Mr.  Gladstone,  in  his  Newcastle  speech,  said :  "The 
leaders  of  the  South  have  made  an  army,  and  they  have  made,  gen- 
tlemen, what  is  more  than  either,  they  have  made  a  nation.  We 
may  anticipate  their  success  so  far  as  regards  effecting  their  separa- 
tion from  the  North.  I,  for  my  own  part,  cannot  but  believe  that 
that  event  is  as  certain  as  any  event  yet  future  and  contingent  can 
be." 

The  great  majority  of  thoughtful  observers  in  England,  even  among 
the  element  opposed  to  our  success,  conceded  that  it  was  inevitable, 
among  them  Richard  Cobden. 

So  far  from  our  cause  being  hopeless  from  the  beginning,  we  again 
and  again  were  in  reach  of  success.  In  spite  of  the  want  of  judg- 
ment on  the  part  of  our  civil  government,  which  might  early  in  the 
war   have   taken   steps    which    would   have    insured    Southern    inde- 


10 

pendeuce,  the  brilliant  courage  of  our  soldiers  often  would  have  won 
it  but  that  it  was  frustrated  by  circumstances  so  unforeseen  that  it 
seems  as  if  it  were  the  hand  of  Providence. 

THE   SOUTH    FAILED,    BUT    NOT  THE   CONFEDERATE   SOLDIER. 

But  they  say  that,  nevertheless,  we  failed.  The  Confederacy  failed, 
but  not  the  Confederate  soldier.  Your  past  is  secure.  The  great 
soldiers  of  history  are  the  Macedonian  Phalanx  of  Alexander  the 
Great,  the  Tenth  L^ion  of  Caesar,  the  Ironsides  of  Cromwell,  the 
Old  Guard  of  Napoleon.  The  Confederate  soldier  is  their  worthy 
comrade  and  their  equal.  The  government  which  each  of  those  brave 
bodies  of  soldiers  served  went  down  into  irretrievable  and  utter  de- 
feat, but  their  fame,  lilie  yours,  is  immortal.  More  than  2,200  years 
ago,  Alexander,  a  mere  boj-,  crossed  into  Asia  with  a  small  army 
of  which  the  Macedonian  Phalanx  was  the  flower.  In  three  years 
he  had  invaded  Africa,  captured  Egypt,  rolled  up  the  Empire  of 
Darius  and  swept  through  Asia  like  a  cyclone  to  the  Indus,  by 
whose  banks  he  sat  down  to  weep  because  there  were  no  other 
worlds  to  conquer.  In  ten  years  he  lay  dead  and  his  empire  was 
hopelessly  shattered  for  all  time.  But  the  fame  of  that  splendid 
soldiery  lives  on  and  the  superiority  of  Europe  over  Asia  and  Africa 
was  settled  by  them  for  all  the  ages. 

Nearly  300  years  later  Caesar  led  the  Roman  Legions  from  "Pontus 
into  Gaul."  He  conquered  the  barbarian  and  destroyed  the  aristo- 
cratic supremacy  at  Rome.  The  heart  of  his  army  was  the  famous 
Tenth  Legion.  In  ten  years  he  lay  dead  at  the  foot  of  the  statue  of 
Pompey,  his  great  rival.  Like  Alexander,  he  left  no  successor,  and 
his  conquests  were  divided  and  fought  over  by  smaller  men.  But 
the  fame  of  the  Tenth  Legion  lives  always,  and  the  superiority  of 
civilized  man  over  barbarian  established  by  them  has  not  since  been 
questioned. 

Coming  down  the  ages,  we  meet  the  famous  Ironsides  of  Crom- 
well, that  somber  soldiery  who  at  Naseby.  at  Edgehill,  at  Marston 
Moor,  shattered  forever  the  fiction  of  the  divine  right  of  kings.  In 
a  few  short  years  his  rule  vanished  and  the  Stuarts  returned  (for  a 
while).  But  the  fame  of  the  Ironsides  lives  on  and  the  principle 
they  established  cannot  be  shaken. 

And  then  a  century  ago  arose  that  splendid  soldier,  the  first  Napo- 
leon, who  ran  up  the  tricolor  of  France  over  every  capital  in  Conti- 
nental Europe  from  Madrid  to  Moscow.  The  heart  of  his  army  was 
the  "Old  Guard." 

That  famous  body  of  men  existed  less  than  ten  years,  for  the 
meteoric  splendor  of  the  great  captain  died  away  as  suddenly  as  it 
had  arisen;  but  the  fame  of  the  "Old  Guard"  will  never  die.  They 
represented  the  principle  that  the  people  of  a  country  have  a  right  to 
establish  their  own  government  and  change  its  form  at  will.  That 
principle  abides  to-day  and  has  become  world-wide  and  undisputed. 

What  is  true  of  these  great  historic  battalions  is  true.  Comrades,  of 


11 

the  Confetlerate  soldier.  The  fame  of  the  soldiers  of  Alexander,  of 
Ciesar,  of  Cromwell,  of  Napoleon,  and  the  principles  for  which  they 
stood  survived  the  ephemeral  government  under  whose  banner  they 
fought,  and  was  in  no  wise  affected  by  its  downfall.  Not  only  has 
the  fame  of  your  valor,  of  your  endurance,  of  your  splendid  soldierly 
qualities  survived  the  short  life  of  the  Confederacy,  but  the  principle 
of  local  self-government  has  survived  Appomattox  and  will  endure 
throughout  all  generations.  Without  it,  this  Union  of  coequal  States 
would  become  a  centralized  despotism,  and  the  head  of  its  govern- 
ment (whatever  it  might  be  called)  a  military  dictator  requiring  the 
constant  support  of  a  great  army. 

SERVICES    AFTER   THE    WAR. 

Nor  will  I  linger,  soldiers,  to  speak  of  your  services  after  the 
war,  when  unawed  by  garrisons  in  your  midst  and  unseduced  by 
promises  of  offices  and  of  public  plunder,  you  were  the  mainstay  of 
public  order  and  of  private  security.  Your  services  during  those 
years  are  not  less  worthy  of  remembrance  by  a  grateful  people  than 
your  moi'e  brilliant  services  during  four  years  of  war.  When 
Anglo-Saxon  supremacy  was  threatenetl  and  a  repetition  of  Hayti  and 
San  Domingo  was  imminent,  it  was  the  quiet  determination  and 
shoulder-to-shoulder  discipline  of  the  Confederate  soldiers  that  up- 
held the  tottering  fabric.  These  men  had  been  at  Chancellorsville,  at 
Fredericksburg,  at  Spottsylvania,  at  Chickamauga.  They  were  dis- 
ciplined and  accustomed  to  act  together.  The  carpet-baggers  gave 
you  but  one  look  and  then  they  packed  their  gi-ips  and  left. 

But  I  do  not.  wish  to  speak  to  you  longer  of  the  past.  The  young- 
est of  those  who  wore  the  gray  have  long  since  crossed  the  crest  of 
the  narrow  ridge  that  divides  two  great  oceans,  and  like  Balboa,  have 
descried  from  the  western  slope  the  wide  waste  of  waters  which 
reach  beyond  the  sunset.  Not  many  years  shall  pass  ere  the  last  of 
those  who  followed  the  fortunes  of  Lee  and  Jackson,  of  Johnston 
and  Forrest,  shall  have  set  sail  on  that  shoreless  sea,  and  the  last 
footfall  of  the  tread  of  the  Old  Confederate  Regiments  whose  march 
shook  a  continent  shall  be  echoing  in  eternity.  It  is  of  the  present 
and  of  what  in  my  judgment  justice  to  you  demands  that  I  shall 
now  briefly  speak. 

PENSIONS. 

In  so  doing,  I  wish  to  say  that  I  speak  my  own  sentiments,  without 
consultation  with  any  officer  of  this  association.  Whatever  responsi- 
bility, if  responsibility  there  be,  is  on  me,  not  on  them.  When  at  the 
close  of  the  bloody  war  between  those  hereditary  enemies,  France 
and  Germany,  in  1871,  an  indemnity  of  $1,000,000,000  was  laid  on 
France,  the  entire  civilized  world  stood  aghast.  If  at  Appomattox 
beneath  the  generous  terms  of  Grant  there  had  been  written  a  sup- 
plement laying  a  contribution  of  .$1,000,000,000  upon  the  South  it 
would  have  staggered  indignation.  Yet  that,  and  more  tlian  that, 
has  been  laid  upon  the  South  as  a  direct  war  contribution. 


12 

I  speak  not  of  the  hundreds  of  millions  which  in  the  years  after 
the  war  were  collected  out  of  the  South  by  three  cents  a  pound  tax 
on  cotton,  when  not  a  cent  of  such  tax  was  or  could  be  levied  in 
the  Northern  States.  No  court  held  that  tax  a  direct  tax  and  there- 
fore unconstitutional,  though  the  court  held  that  a  tax  upon  large 
incomes,  which  were  mostly  at  the  North,  was  illegal  because  a 
direct  tax,  and  set  it  aside. 

Nor  do  I  refer  to  the  tariff  taxes  which  have  always  been  inge- 
niously framed  to  throw  an  undue  share  of  its  weight  upon  the  South 
and  to  the  benefit  of  wealthier  States. 

You  had  returned  to  your  devastated  fields  and  to  j'our  stricken 
homes,  where  amid  departed  hopes  there  too  often  lingered  the  melan- 
choly attractions  of  the  grave.  It  was  not  generous,  it  was  not 
magnanimous,  that  the  victors,  wealthy  with  the  contracts  of  a  suc- 
cessful war  and  the  profits  of  an  enhancing  currency,  should  throw 
an  excessive  share  of  taxation  upon  you  in  your  poverty.  But  let 
that  pass.  I  will  say,  however,  that  Congress  ought  to  refund  the 
amoimt  of  the  illegal  cotton  tax,  and  if  the  heirs  of  the  original  tax- 
payers would  be  difficult  to  trace,  the  sum  could  be  paid  over  in 
proper  proportions  to  the  different  cotton-growing  States  as  a  fund 
for  schools  and  good  roads.  I  refer,  as  I  have  said,  not  to  the 
cotton  tax,  nor  to  the  unjust  discriminations  of  the  tariff.  I  refer 
to  the  more  direct  contributions  laid  upon  the  South  to  defray  the 
expenses  arising  out  of  the  war.  I  have  in  my  hand  the  Government 
report  which  shows  that  since  the  war  for  pensions  and  the  support 
of  "Soldiers'  Homes,"  we  have  paid  near  $4,000,000,000.  The  South 
pays  one-third,  at  the  least,  of  this,  probably  more,  and  has  thus  paid 
over  $1,300,000,000  of  direct  war  indemnity.  While  the  North  has 
paid,  say,  $2,600,000,000,  nearly  the  whole  of  the  $4,000,000,000  has 
gone  there,  so  that  the  pensions  have  not  only  been  no  tax  upon  that 
section,  but  out  of  our  poverty  we  have  been  making  those  wealthy 
States  wealthier  still.  Out  of  the  more  than  $1,300,000,000  paid  by 
the  South  for  pensions,  almost  none  comes  back  to  North  Carolina, 
and  to  the  States  farther  South.  If  we  allow  for  the  troops  in  the 
Union  army  that  went  from  West  Virginia,  Kentucky,  Missouri,  East 
Tennessee,  and  the  colored  troops,  perhaps  one-fourth  of  the  $1,300,- 
000,000  has  come  back  to  parts  of  the  South.  There  remains  the 
enormous  sum  of  $1,000,000,000,  exclusive  of  interest,  which  the 
South  has  paid  as  a  war  iudemnitj-,  direct,  pure  and  simple.  North 
Carolina  has  over  one-fortieth  of  the  population  of  the  Union.  If 
there  was  no  discrimination  against  us  by  reason  of  the  tariff  and  the 
Internal  Revenue  tax.  North  Carolina  would  still  pay  one-fortieth  of 
the  Federal  taxation.  So,  of  the  one  hundred  and  sixty  millions  an- 
nual appropriations  for  pensions  (it  is  something  less  now)  North 
Carolina  pays  at  least  four  millions  yearly,  and  gets  scarcely  any- 
thing back.  North  Carolina  has  up  to  date  paid  more  than  one  hun- 
dred millions  into  the  Federal  pension  fund. 


13 

I  ain  not  opposing  pensions  to  Federal  soldiers ;  indeed,  I  am  in 
favor  of  tlie  system  in  force  in  Germany  and  England  of  paying  old 
age  pensions  to  laborers,  as  well  as  to  soldiers — to  all  who  have  spent 
their  lives  for  the  good  of  the  public,  without  adequate  return.  Nor 
do  I  advocate  payment  of  pensions  to  Federal  soldiers  out  of  the  taxa- 
tion levied  only  on  the  States  that  sent  soldiers  to  the  Union  army. 
That  would  be  both  impracticable  and  unconstitutional. 

What  I  do  advocate,  as  a  matter  of  justice,  as  a  matter  of  souud 
public  policy,  as  well  as  of  magnanimity,  is  to  place  the  needy  disabled 
Confederate  soldiers  upon  the  pension  rolls  on  equal  terms  with  the 
soldiers  already  there,  so  far  as  the  future  is  concerned,  but  without 
any  arrearages.  And  as  the  "Soldiers'  Homes"  are  thinning  out,  get- 
ting too  large  for  the  decreasing  numbers  of  their  inmates.  Confed- 
erate soldiers  should  be  admitted  to  such  of  those  homes  as  are 
located  in  the  South. 

Why  not?  There  is  no  reason,  save  that  it  has  not  been  done  here- 
tofore. One-third  of  the  money  paid  into  the  United  States  Treas- 
ury is  paid  by  the  Southern  States.  The  Federal  Government 
could  establish  old  age  pensions,  and  if  so,  the  law  would  apply  to 
all  the  States.  If  they  pay  pensions  to  old  men  only,  who  have 
served  in  the  army  between  1S61  and  1865,  why  not  let  it  be  paid  to 
all  the  soldiers  of  that  war? 

The  States  existed  before  the  Union  and  created  the  Union.  In 
joining  the  Union  many  of  the  States  expressly  reserved  the  right 
to  withdraw.  New  England  repeatedly  asserted  that  right.  The 
constitutional  text-book,  "Rawle  on  the  Constitution,"  which  was 
taught  at  West  Point  while  Robert  E.  Lee  and  Joseph  E.  Johnston 
and  Stonewall  Jackson  were  cadets,  laid  down  the  principle  that  a 
State  had  the  right  to  withdraw  from  the  Union.  In  1861  eleven 
States  withdrew.  Twenty-two  did  not,  and  refused  to  let  the  eleven 
withdraw.  The  Massachusetts  troops  went  to  the  front  because  Mas- 
sachusetts ordered  them  to  do  so,  and  not  because  the  United  States 
ordered  them.  North  Carolinians  went  to  battle,  not  because  the  Con- 
federate States  so  ordered,  but  because  North  Carolina  sent  them. 
We  met  regiments  from  Massachusetts,  New  York  regiments.  Penn- 
sylvania regiments,  but  rarely,  if  ever,  met  a  United  States  regi- 
ment. We  fought  alongside  of  Virginia  regiments,  South  Carolina 
regiments,  Georgia  regiments,  but  not  Confederate  States  regiments. 
The  pension  rolls  to-day  bear  the  names  of  men  from  Ohio  regiments, 
from  Michigan  regiments,  from  New  Jersey  regiments.  North  Caro- 
lina pays  annually  $4,000,000  into  the  pension  fund.  Why  are  not  the 
surviving  disabled  soldiers  of  North  Carolina  upon  the  pension  roll? 
The  men  from  Ohio  and  other  Northern  States  went  because  their 
States  ordered  them.  Men  from  North  Carolina  and  other  Southern 
States  went  on  this  side  because  their  States  ordered  them.  Both  did 
their  duty  as  they  saw  it.  The  whole  world  admits  this.  The  twenty- 
two  States  won.  The  principle  of  an  indissoluble  Union  won.  No  one 
questions  the  result.     Over  forty-four  years  ago  we  came  together. 


14 

after  four  years  of  separation.  We  have  had  a  commou  treasurj' 
ever  since.  Why  should  not  pensions  be  paid  out  of  it  to  the  poor  and 
needy  soldiers,  who  served  and  suffered  at  the  command  of  their  State, 
whether  that  State  was  New  York  or  North  Carolina? 

ENORMOUS   WAR    INDEMNITY. 

It  is  neither  just  nor  wise  to  continue  the  enormous  war  indem- 
nity which  the  South  has  been  paying.  It  is  levied  now  on  a  new 
generation,  and  of  the  four  million  dollars  annually  paid  into  the 
pension  fund  by  North  Carolina,  very  little  comes  back. 

It  Is  folly  to  say  that  these  Confederate  soldiers  were  traitors. 
The  United  States  Government  indicted  Jefferson  Davis  for  treason, 
but  abandoned  the  prosecution.  Not  a  man  has  been  convicted  of 
treason.  We  are  treated  as  an  integral  part  of  the  Union  when  we 
pay  taxes,  and  when  troops  were  needed  for  war  with  Spain.  Why, 
when  pensions  are  paid  for  services  in  a  Pennsylvania  regiment, 
should  they  not  be  paid  for  disabilities  incurred  in  a  North  Carolina 
regiment? 

Confederate  officers  of  rank  have  sat  in  the  United  States  Senate, 
in  the  Cabinet,  on  the  Supreme  Court  bench,  and  have  represented 
the  Government  abroad.  Should  the  punishment  and  disabilities  for 
treason  rest  alone  upon  the  now  aged  and  disabled  private  soldiers 
who  followed  them? 

The  statue  of  General  Robert  E.  Lee  stands  by  the  side  of  George 
Washington  in  the  Capitol  and  his  name  is  inscribed  on  a  tablet  by 
the  side  of  Grant  in  the  Pantheon  of  Fame,  the  stately  building  by  the 
side  of  the  Hudson  Paver  in  New  York  City.  The  name  of  Jefferson 
Davis  has  been  restored  by  command  of  the  Federal  Government  upon 
the  arch  of  Cabin  John  Bridge,  in  sight  of  the  Capitol,  from  which  it 
had  been  erased  during  the  war,  and  his  lineaments  are  chiseled  on 
the  service  of  silver  presented  to  a  war  vessel  of  the  United  States 
by  the  State  of  Mississippi,  and  the  vessel  went  under  Government 
orders  up  the  river  to  Yicksburg  to  receive  the  gift.  Nearly  a  half 
century  has  elapsed  since  the  war  began.  Most  of  the  survivors  of 
the  soldiery  of  the  South  went  into  the  war  as  mere  youths.  Why 
should  they  alone  bear  the  punishment?  As  a  matter  of  justice,  the 
private  soldiers  who  obeyed  the  call  of  their  States  should  receive 
equal  payment  for  disabilities  incurred  out  of  the  treasury  of  a  re- 
united country,  irrespective  of  the  States  from  which  they  came. 

As  a  matter  of  public  policy,  this  step  should  be  taken,  and  soldiers 
of  the  Southern  States  admitted  also  to  vacant  places  in  the  "Sol- 
diers' Homes,"  that  the  last  relic  of  the  animosities  aroused  by  the 
war  be  banished  forever. 

As  a  matter  of  magnanimity,  there  should  be  an  end  to  the  vast 
war  indemnity  which  the  South  is  paying,  and  which  is  the  largest 
and  most  unjust  known  to  history.  There  is  no  other  way  to  end  it 
than  to  pay  pensions  to  soldiers  of  all  the  States.  If  a  war  indemnity 
was  just,  we  have  paid  it  long  enough,  and  the  present  generation  at 


15 

the  South  shouJd  uot  be  burdened  with  the  payment  of  a  vast  indem- 
nity for  a  war  in  which  they  had  no  part  and  wliich  was  over  before 
they  were  born-.  The  whole  country  is  proud  of  the  fame  of  the 
Confederate  soldiers.  Let  not  the  few  living  survivors  of  the  rank 
and  file  of  those  armies  which  shed  glory  upon  the  race  bear  the  sole 
punishment. 

Soldiers,  I  have  spoken  for  justice  to  you,  and  for  the  justice  of  the 
South.  I  know  your  pride,  but  we  should  feel  that  this  is  our  Gov- 
ernment, and  it  should  feel  that  you  are  its  citizens.  This  money 
will  be  but  part  of  our  own  money  coming  back  to  us.  For  forty  odd 
years  we  have  been  paying  out  of  our  poverty,  and  it  all  went  the 
other  way.  This  of  itself  would  have  kept  us  poor,  if  we  had  not 
naturally  been  one  of  the  richest  countries  in  the  world. 

Some  will  say  that  the  conquerors  do  not  pay  pensions  to  the 
soldiers  of  the  conquered.  But  this  loses  sight  of  our  system  of  gov- 
ernment. The  victorious  twenty-two  States  are  not  the  Government. 
We  have  "come  together,"  as  they  insisted  we  should  do,  and  are  now 
one-third  of  this  Government,  and  should  not  be  discriminated  against. 

If  the  survivors  are  in  the  same  ratio  as  the  number  of  troops  on 
the  respective  sides  during  the  war,  this  would  only  add  125,000 
Confederates  to  the  620,000  Union  survivors  now  on  the  pension  roll, 
and  this  only  after  the  lapse  of  forty  odd  years. 

Whether  this  act  of  justice  is  done  or  not,  posterity  will  say  that  it 
should  have  been  done. 

The  "thin  gray  line"  is  growing  thinner  every  day.  We  are  so  few 
we  rarely  meet  now,  but  pass  one  another  as  ships  in  the  night.  But 
wherever  you  are.  and  wherever  you  go,  may  God's  blessing  be  upon 
you,  gallant  men  that  you  are. 


THE  TRUSTS  OPPOSING  CLARK  FOR  SENATOR. 


Insidiously  They  Now  Say,  "He  is  Too  Good  a  Judge  to 
Lose."  Yet  They  Fought  His  Nomination  and  Election 
in  1902. 

[From  Fayetteville  Observer.] 

In  1902.  when  Judge  Claek  was  a  candidate  for  nomination  for 
Chief  Justice,  great  claims  of  his  weal^ness  were  publishetl ;  and  yet 
wlaen  the  roll  call  ended,  the  vote  for  his  opponent  was  hardly  visible. 
And  this,  too,  when  the  great  corporations  and  allied  special  interests 
had  raised  a  large  sum  and  employed  all  their  agents  to  defeat  his 
nomination  and  election. 

It  is  worth  noting,  in  this  connection,  that,  while  in  the  nine  years 
that  have  elapsed  Judge  Clark  has  done  nothing  to  win  the  affection 
of  these  interests,  the  cry  goes  out  that  he  is  "too  good  a  Judge  to 
be  spared  from  the  Bench" !  We  do  not  think  this  cry  comes  from 
those  who  wished  Judge  Clark  to  secure  the  Chief  Justiceship  in  1902. 
It  strikes  us  that  the  argument  that  he  "cannot  be  spared  from  the 
Bench"  is  an  attempt  to  do  what  an  assault  would  fail  to  do.  It  is 
the  tirst  time,  we  imagine,  in  history  that  it  has  been  used  as  an 
argument  against  promoting  a  man  or  rewarding  him,  that  "he  has 
done  his  duty." 

As  a  matter  of  fact,  in  the  present  state  of  affairs — namely,  since 
the  usurpation  of  legislative  powers  by  the  Supreme  Court  of  the 
United  States — a  man  of  the  attainments  and  legal  equipment  such  as 
Judge  Clark  possesses  can  do  infinitely  more  against  the  Trusts  and 
for  the  people  in  the  Senate  than  v,here  he  now  is.  The  issue  pre- 
sented by  the  opinion  of  the  Supreme  Court  in  the  Standard  Oil 
decision  is  the  most  momentous  that  has  confronted  the  American 
people  since  the  Republic  was  declared.  When  it  is  tried  in  the  halls 
of  Congress,  as  soon  it  will  be,  the  Progressive  States  will  vie  in  the 
effort  to  send  their  mightiest  men  there.  Who  can  hesitate,  in  this 
crisis,  where  the  choice  shall  lie  in  North  Carolina? 


R.  R.  V.  POWER    CO. 

VOL.  171    N.  C.  REPORTS 


Can  a  Great  Water  Power  Company 

Take  the  Water  Power  of 

AN  Individual  or  of  a 

Smaller  Company? 

AGAINST   THE   WILL    OF   THE    SMALLER    COMPANY 
WHICH    WISHES   TO    USE    IT    ITSELF? 

AND   WITHOUT   TRIAL    OF   THE    ISSUES    BY    JURY? 


DISSENTING   OPINIONS    IN   THE    NEGATIVE 

BY 

CHIEF   JUSTICE    WALTER    CLARK 

AND 

JUDGE    W.   A.   HOKE 


RALEIGH 

Edwards  a  Broughton  Printing  Company 
1916 


Railway  Co.  v.  Power  Co. 


curred),  said:  "I  do  not  think  the  defendant  has  any  property  in  the 
water  in  the  stream,  and  that  it  is  only  entitled  to  a  reasonable  use  of  it 
as  it  passes  his  land,  which  may  include  the  use  for  manufacturing  pur- 
poses." 

This  last  is  all  that  ^he  defendant  sought,  and  it  is  for  its  choice  to 
say  whether  it  shall  use  it  by  aii  undershot  or  an  overshot  wheel  for 
grinding,  or  conduct  it  through  a  tube  to  a  point  lower  down,  so  that 
in  that  way  its  fall  shall  utilize  the  force  of  gravity  which  will  be  con- 
verted into  electricity  and  carried  by  cables  to  run  the  street  cars  and 
lights  of  the  defendant,  which  is  exactly  the  use  to  which  plaintiff 
itself  seeks  to  apply  it. 

The  testimony  of  the  witnesses  E.  M.  Oates,  W.  H.  Banks,  J.  W. 
Seaver,  and  D.  E.  Shearer  was  ample  to  go  to  the  jury  and,  indeed, 
clear  and  explicit  that  the  defendants  could  develop  on  their  half  of 
the  stream  1,360  h.p.,  and  that  this  could  be  done  without  materially 
interfering  with  the  rights  of  the  plaintiff  on  the  opposite  side  of  the 
stream.  As  we  held  before,  this  evidence  should  have  gone  to  the  jury, 
and  in  withdrawing  it  the  judge  assumed  to  himself  the  functions  of 
the  jury  and  denied  to  these  defendants  their  constitutional  rights. 

This  is  a  proceeding  by  the  plaintiff  to  take  from  the  defendants 
their  one-half  of  the  stream  which  is  the  boundary  between  the  two. 
It  is  admitted  that  the  line  between  them  runs  to  the  middle  of  the 
stream,  the  defendants  owning  one-half  of  the  bed  of  the  stream  for 
half  a  mile  on  the  south  side  and  the  plaintiff  owning  the  other  half. 
The  plaintiff  alleges  that  it  has  a  right  to  condemn  this  water  power 
of  the  defendants,  notwithstanding  a  statute  prohibiting  the  condemna- 
tion of  any  water  power,  because,  as  it  alleges,  the  defendants  cannot 
utilize  it  for  that  purpose,  and,  therefore,  the  plaintiff  can  take  it 
against  the  will  of  'the  defendants.  In  R.  R.  v.  Oates,  164  N.  C,  169, 
and  in  R.  R.  v.  Light  and  Power  Co.,  169  N.  C,  472,  we  held  that  upon 
the  evidence  this  was  an  issue  of  fact  which  the  defendants  were  en- 
titled to  have  a  jury  pass  upon.  The  plaintiff  again  insists  for  the 
third  time  that  it  can  have  the  judge  withdraw  that  issue  from  the 
jury  and  find  as  a  matter  of  law  that  the  defendants  could  not  use 
their  half  of  the  stream  to  generate  water  power. 

Laws  1907,  ch.  74,  contains  this  provision:  "Water  powers,  devel- 
oped or  undeveloped,  with  the  necessary  land  adjacent  thereto  for  their 
development,  shall  not  be  taken"  under  condemnation  proceedings. 
This  act  was  sustained  in  Power  Co.  v.  Whitney,  150  N".  C,  34. 

There  are  many  reasons  why  the  defendants  cannot  be  deprived  of 
their  property  in  this  case  without  violating  the  guaranty  that  property 
shall  not  be  taken,  as  was  said,  169  N.  C.  at  p.  474,  "without  due 
process  of  law  and  only  according  to  the  law  of  the  land.     The  defend- 


Railway  Co.  v.  Power  Co. 


ants  had  the  right  to  have  the  issue  of  fact  (whether  they  could  utilize 
their  half  of  the  stream)  found  by  a  jury,  and  only  upon  such  finding 
should  the  court  have  imposed  the  judgment  of  the  law." 

In  Dargan  v.  R.  R.,  113  N.  C,  596,  it  was  said  that  ''the  right  of 
"the  State  to  take  private  property  rests  upon  the  ground  that  there  is  a 
public  necessity  for  such  appropriation."  It  is  not  a  public  necessity 
that  the  plaintiff  should  take  from  the  defendants  the  enjoyment  of 
their  property  in  this  water  power.  When  a  railroad  track  is  to  be  laid 
out  from  one  point  to  another,  the  construction  of  the  railroad  being  a 
gf/asi-public  matter,  it  is  a  public  necessity  that  it  shall  lay  out  its  line, 
with  such  restrictions  as  the  statute  requires,  across  the  land  of  indi- 
viduals, and,  therefore,  the  right  of  eminent  domain  is  conferred  upon 
the  railroad  company  with  the  correlative  right  that,  being  a  public 
corporation,  it  can  be  regulated  by  the  State;  but  it  is  not  a  public 
necessity  that  the  railroad  company  shall  take  the  defendant's  water 
power,  which  is  not  needed  for  its  right  of  way  and  is  merely  a  facility 
for  the  subsequent  operation  of  the  road.  It  would  be  as  accurate  to 
say  that  the  plaintiff  could  condemn  a  coal  mine  100  miles  or  more 
off  its  line  to  generate  power  for  its  engine,  or  a  forest  anywhere  to 
obtain  wood  for  its  engines  or  cross-ties  for  its  track,  as  to  say  that  it 
could  condemn  the  defendant's  falling  water  to  generate  electric  power 
to  move  its  engines. 

It  would  be  as  just  to  say  that  one  railroad  could  condemn  the 
engines  or  the  freight  cars  or  the  passenger  cars  of  another  company, 
because  that  would  be  a  facility  to  operate  its  lines  fully  as  much  as 
to  take  from  the  defendants  the  water  power,  which  the  defendants 
purchased  to  aid  in  running  their  street  cars  in  Hendersonville  and 
to  furnish  light  and  power  for  the  citizens  of  that  town,  for  the  con- 
venience of  the  plaintiff  in  running  its  railroad. 

But  if  it  were  conceded,  as  it  cannot  be,  that  it  is  a  public  necessity, 
from  the  nature  of  the  property  it  is  clear  for  many  reasons  that,  while 
it  would  be  a  convenience,  it  is  not  a  necessity  at  all. 

1.  The  plaintiff  and  defendants  might  build  a  dam,  or  several  dams, 
across  the  stream  in  its  precipitous  course  and  divide  the  water  at  the 
middle  of  the  crest,  as  Goat  Island  divides  Niagara  Falls  into  the 
Canadian  and  American  Falls.  There  is  evidence,  and  it  is  also  com- 
mon knowledge,  that  this  is  practicable  and  has  been  done  in  many 
cases. 

2.  Or,  the  plaintiff  and  the  defendant  might  cooperate  by  having 
all  the  water  conducted  into  one  power  plant  and  equally  divide  be- 
tween them  the  electricity  created.  It  is  common  knowledge  that  this 
has  been  done  in  many  cases,  and  it  is  entirely  practicable.  The  great 
power  plants  in  the  State  thus  divide  and  distribute  to  different  towns 


Railway  Co.  v.  Power  Co. 


and  to  different  individuals  the  power  generated  by  them.  Certainly 
the  plaintiff  and  defendants  might  divide  it  into  two  equal  parts. 

3.  Or,  the  defendants  might,  by  putting  in  a  wing  dam,  use  their 
half  of  the  water  without  in  any  wise  diminishing  the  capacity  of  the 
plaintiff  to  use  the  other  half.  There  was  ample  evidence  in  this  case 
that  this  could  be  done,  and  that  as  a  matter  of  fact  it  was  being  done 
at  other  points  in  the  State  and  all  over  the  country.  While  the  de- 
fendants seemed  to  prefer  this  method  to  the  other  two  above  named, 
they  were  not  restricted  to  this.  They  are  entitled  to  use  and  enjoy 
their  half  intere-st  in  this  water  power,  because  it  is  evident  that  it  can 
be  utilized  by  them  for  the  purpose  of  running  their  street  cars  and  fur- 
nishing power  and  light. 

In  Linderman  v.  Lindsey,  8  Am.  Decisions,  325,  Mr.  Justice  Shars- 
ivood  says :  "When  the  proprietor  of  the  two  opposite  banks  of  a  stream 
of  water  are  desirous  of  enjoying  the  advantage  of  the  Avater  for  pro- 
pelling machinery,  a  dam  for  that  purpose  cannot  be  built,  except  by 
mutual  consent,  unless,  indeed,  it  may  he  what  is  termed  a  wing  dam 
confined  to  the  soil  of  the  person  who  erects  it,  on  that  half  of  the  bed 
of  the  stream  which  belongs  to  him."  This  principle  is  also  laid  down 
by  Shaw,  C.  J.,  in  Elliott  v.  R.  R.,  57  Am.  Dec,  88,  quoted  by  Brown, 
J.,  in  Harris  v.  R.  R.,  153  N.  C,  545. 

In  Charnoch  v.  Higuerra,  52  Am.  St.,  197,  it  was  held:  "Since  the 
right  to  make  use  of  the  stream  is  common  to  all  who  own  property  on 
its  shores,  there  would  prima  facie  seem  to  be  no  cause  of  complaint  for 
any  use  made  by  another  unless  he  were  actually  injured  by  such  use" ; 
and  all  the  authorities  hold  that  whether  the  party  is  making  a  reason- 
able use  is  a  question  of  fact.  This  case  also  is  quoted  by  Brown,  J., 
Harris  v.  R.  R.,  153  N.  C,  544. 

This  stream,  in  the  half  a  mile  that  it  flows  between  the  plaintiff 
and  defendants,  has  a  fall  of  219  feet  and  is  capable  of  generating 
2,700  h.p.,  of  which  the  defendants  are  entitled  to  use  one-half.  The 
witnesses  give  many  instances  in  which  one-half  of  the  stream  is  thus 
vitilized  by  wing  dams,  some  of  which  are  set  out  in  this  case,  169  'N.  C. 
at  pp.  475  and  476.  Whether  the  defendants  can  utilize  one-half  of 
the  water  by  a  wing  dam  is  a  matter  of  fact  and  not  of  law.  Prentiss  v. 
Geiger,  74  N".  Y.,  341 ;  Bullard  v.  Mfg.  Co.,  77  ^.  Y.,  525 ;  Gould  on 
Waters,  sec.  220;  Dumont  v.  Kellogg,  18  Am.  Rep.  (Mich.),  102; 
Hayes  v.  Waldron,  84  Am.  Dec.  (N.  H.),  105;  Merry  field  v.  Worcester, 
14  Am.  Rep.  (Mass.),  592;  UUrith  v.  Water  Co.,  4  L.  R.  A.  (Ala.), 
474.    And  the  books  are  full  of  similar  cases. 

What  the  defendants  purpose  is  not  a  division  of  the  water,  taking 
it  out  of  the  stream,  but  to  utilize  the  force  of  gravity  contained  in 
the  falling  of  one-half  of  this  water  and  converting  it  into  electricity 
for  the  operation  of  their   street   railway   and   furnishing  power   and 


Railway  Co.  v.  Power  Co. 


light  to  their  customers  in  fulfillment  of  their  contract.  This  is  not  a 
navigable  stream,  and,  therefore,  the  plaintiff  cannot  object  that  this 
use  might  diminish  the  depth  of  the  water  on  its  side — if,  indeed,  it 
would  have  that  effect. 

While  the  defendant  stressed  mostly  its  evidence  that  its  half  of  the 
water  could  be  utilized  by  a  wing  dam,  it  did  not  abandon  its  other 
rights,  which  have  been  held  in  many  cases  by  the  best  courts.  In 
Roberts  v.  R.  R.,  74  'N.  H.,  217,  it  is  said:  "The  question,  therefore,  is 
whether  they  have  the  legal  right  to  have  the  water  divided  and  their 
share  assigned  to  them  in  severalty,  if  this  can  be  done  without  unreason- 
ably interfering  with  plaintiif's  rights.  It  is  clear  that  they  have  such 
a  right  if  the  same  rule  applies  to  improved  and  unimproved  water  pow- 
ers, for  it  is  settled  that  the  court  has  power  to  make  such  orders  in  re- 
spect to  the  way  the  several  owners  shall  exercise  their  right  in  the  com- 
mon property  as  will  be  for  the  best  interests  of  each  of  them,  in  so  far 
as  it  can  be  done  without  any  unreasonable  interference  with  the  rights 
of  the  others."  In  Warren  v.  Mfg.  Co.,  26  L.  E.  A.,  288  (86  Me.,  32), 
it  is  said :  "As  between  opposite  riparian  owners  upon  the  same  chan- 
nel, the  court  might  have  jurisdiction  to  equalize  each  owner's  use  of 
the  water  and  to  mark  out  beforehand  each  owner's  share,  and  this  by 
any  appropriate  proceedings  and  instrumentality.  .  .  .  Opposite 
riparian  owners  upon  the  same  channel  have  a  common  and  equal  right 
to  the  use  of  a.11  the  water  flowing  in  that  channel  as  it  passes  their  oppo- 
site land.  If  the  volume  and  flow  of  water  be  limited,  the  use  by  each 
riparian  owner  may  be  limited  by  judicial  action,  in  proportion  so 
that  the  enjoyment  be  kept  equal,  like  the  right."  To  same  purport, 
Sooville  V.  Kennedy,  14  Conn.,  349;  Olmstead  v.  Loomis,  9  ]^.  Y.,  423; 
Olney  v.  Fenner,  2  E.  I.,  211;  Lyon  v.  McLaughlin,  32  Vt.,  423;  and 
Burnhayn  v.  Kempton,  4:4:  IST.  H.,  78. 

The  defendants'  interest  in  this  stream  is  either  a  water  power  or 
it  is  not.  If  it  is  a  water  power,  then  whether  they  can  utilize  it  or 
not  is  an  issue  of  fact  for  the  jury  upon  the  evidence  which  they  have 
offered.  If  it  is  not  a  water  power,  it  is  not  subject  to  condemnation, 
for  the  plaintiff  does  not  seek  to  condemn  it  for  right  of  way.  If  the 
defendants'  interest  in  this  water  is  not  a  pawer  power,  neither  is  the 
plaintiff's  interest,  and  the  statute  does  not  authorize  it  to  create  a 
water  power  by  taking  the  defendants'  interest  which  is  not  a  water 
power.  Besides,  if  the  plaintiff  could  do  this,  the  defendants  could  do 
the  same. 

The  plaintiff  occupies  a  most  extraordinary  position.  It  says,  in 
effect,  to  the  defendants :  "We  will  not  permit  dam  or  dams  across  the 
stream  and  a  division  of  the  water  at  the  middle  of  the  crest  whereby 
you  may  enjoy  your  half  of  the  water  power.  We  will  not  cooperate 
with  you  in  putting  up  a  plant  to  generate  electric  power  and  divide 


Railway  Co.  v.  Power  Co. 


the  power  ijrodueed.  We  will  not  permit  you  to  put  in  a  wing  dam 
whereby  you  may  utilize  only  your  half  of  the  water  without  detriment 
to  us.  We  will  not  permit  you  to  have  a  jury  to  decide  upon  the  evidence 
whether  either  of  these  three  methods  can  be  used.  We  have  offered 
you  $1,000  for  your  half  interest  in  this  stream  and  you  have  offered 
us  $40,000  for  our  half.  We  will  not  accept  your  offer  nor  put  the 
property  up  to  the  highest  bidder.  And  having  thus  prevented  you 
from  enjoying  your  half  of  this  water  power,  we  will  cause  the  court 
to  decree  that  you  cannot  utilize  it,  and,  therefore,  we  will  take  your 
property." 

It  may  be  possible  that  some  other  plaintiff  has  thus  boldly  stated 
his  intention  to  take  the  property  of  another  because  he  has  prevented 
that  other  from  using  it.  But,  if  so,  such  case  cannot  be  found  by 
ordinary  research.  The  plaintiff's  attitude  reminds  us  of  the  fable  in 
^sop.  Irritated  at  the  resistance  of  the  OAvner,  the  plaintiff  says,  in 
effect,  to  the  defendants:  "Anyway,  I  need  your  property  in  my  busi- 
ness, and  I'll  take  it." 

The  defendants  further  contend  that  they  are  entitled  to  be  pro- 
tected in  their  rights  under  the  provisions  of  the  Federal  Constitution 
that  they  shall  not  be  deprived  of  their  property  "without  due  process 
of  law,  nor  denied  the  equal  protection  of  the  law,"  on  four  grounds : 

1.  It  is  not  the  "law  of  the  land"  that  property  off  the  line  of  rail- 
way not  needed  for  its  construction  can  be  taken  to  aid  in  its  operation, 
such  as  a  coal  mine,  or  wood  for  fuel  or  for  cross-ties,  or  water  power. 
Such  property  for  such  purpose  cannot  be  taken  under  "due  process  of 
law." 

2.  Neither  can  public  property  like  that  of  the  defendants,  already 
devoted  to  the  same  public  purpose,  be  taken  under  the  right  of  eminent 
domain.  Lewis  Em.  Domain,  sec.  400.  As  well  might  one  railroad 
company  condemn  the  track,  or  the  engines,  or  the  cars  of  another. 
While  one  road  can  condemn  a  right  of  way  across  the  track  of  an- 
other, it  does  not  take  the  sole  and  exclusive  use  of  the  track  at  that 
point,  as  the  plaintiff  seeks  in  regard  to  the  property  of  the  defendants. 

3.  Botii  the  State  and  Federal  Constitutions  guarantee  the  right  of 
trial  by  jury  as  to  disputed  issues  of  fact.  Putting  the  case  most 
strongly  for  the  plaintiff,  whether  or  not  the  defendants  can  utilize 
their  half  interest  in  this  water  power  is,  upon  the  evidence,  a  much 
•disputed  issue  of  fact,  and  the  court  could  not  deprive  them  of  this 
right  under  "the  law  of  the  land." 

4.  The  public  policy  of  the  Federal  and  State  governments,  as 
shown  by  statutes  and  by  decisions,  notably  in  the  judgments  dissolv- 
ing the  American  Tobacco  Company,  the  Standard  Oil  Company,  the 
Sugar  Trust,  the  Hartford  and  New  Haven  Railroad  Combination, 
and  many  other  cases,  is  that  such  combinations  are  injurious  to  the 


Railway  Co.  v.  Power  Co. 


public  welfare  and  "contrary  to  the  law  of  the  land."  The  Department 
of  Justice  is  considering  instituting  similar  proceedings  to  dissolve  the 
great  water-power  trusts  which  are  taking  into  their  control  the  most 
vital  sources  of  heat,  power,  and  light,  the  water  powers  of  the  country. 
A  recent  publication  made  by  authority  of  the  United  States  Govern- 
ment, of  which  we  take  judicial  notice,  shows  that  in  this  State  already 
two  companies,  the  Southern  Power  Company  and  the  Carolina  Power 
and  Light  Company,  own  75  per  cent  of  the  water  power  of  this  State, 
and  that  eight  companies  control  94  per  cent  of  the  total  water  power 
of  the  State,  while  forty-nine  cities  and  towns  altogether  control  only 
1  per  cent.  If  the  plaintiff  can  through  the  courts  wrest  from  the 
defendants  the  enjoyment  of  their  half  of  this  water  power  which  is 
being  used  for  the  tOAvn  of  Hendersonville,  then  that  much  will  be 
taken  from  the  1  per  cent  of  water  power  which  these  forty-nine  cities 
utilize  to  be  added  to  the  94  per  cent  which  has  been  gathered  by  the 
eight  corporations  which  the  Government  reports,  even  if  some  of 
these  eight  are  not  merely  aliases  for  the  larger  ones.  It  appears  that 
both  the  president  and  secretary  and  treasurer  of  the  plaintiff  com- 
pany are  directors  in  the  Northern  and  Piedmont  Railroad  Company, 
which  said  treasurer  in  his  testimony  states  is  known  as  "the  Dukes' 
road."  It  is  common  knowledge  that  the  Southern  Power  Company, 
one  of  the  companies  reported  by  the  Government  as  engrossing  the 
water  power  of  this  State,  is  controlled  by  the  same  interests.  The  de- 
fendants have  the  right,  in  this  proceeding,  to  have  a  jury  pass  upon  the 
question  whether  the  plaintiff  company  is  not  potentially  the  property 
of  the  same  financial  "interests,"  for,  if  so,  to  grant  to  it  the  right  to 
absorb  this  property  and  take  it  from  the  defendants  is  in  violation 
of  the  "law  of  the  land"  which  the  Government  is  seeking  to  enforce 
against  these  great  trusts  and  combinations  which  would  take  to  them- 
selves the  entire  water  power  of  the  State,  the  source  of  light,  heat,  and 
power  of  the  future. 

For  these  reasons  the  defendants  invoke  the  protection  of  the  XIV 
Amendment  at  the  hands  of  the  courts. 

It  would  seem,  therefore,  that  the  property  of  the  defendant  is  not 
subject  to  condemnation,  and  that  the  plaintiff  cannot,  by  preventing 
the  defendant  from  using  it,  make  it  subject  to  condemnation,  and 
that  in  any  aspect  the  defendants  are  entitled  to  a  trial  by  jury,  and 
to  deprive  them  of  such  right  is  in  violation  of  both  the  State  and  Fed- 
eral Constitutions. 

Joseph  B.  Lee,  "one  of  the  owners  and  directors  of  the  plaintiff 
company"  (as  he  styles  himself),  testified  that,  as  such,  he  offered  the 
defendants  $1,000  for  their  one-half  of  this  water  power,  which  he 
"thought  was  a  fair  offer."  But  he  admitted,  on  cross-examination, 
that  he  refused  to  take  $40,000  for  the  plaintiff's  half  when  offered  by 


10 
Railway  Co.  v.  Power  Co. 


the  defendants.  The  uncontradicted  testimony  is  that  the  defendants 
had  $40,000  in  bank  to  back  this  offer,  though  it  was  admitted  that  the 
defendants'  capital  was  small  as  compared  with  that  of  the  plaintiff. 

The  plaintiff's  evidence  was  that  it  was  intended  to  spend  $2,000,000 
on  the  development  of' this  water  power.  Under  the  statute  a  water- 
power  plant  cannot  condemn  another's  water  pOAver,  whether  in  use 
or  not.  This  is  only  allowed  to  an  interurban  railroad  company,  and 
even  then  only  if  the  water  power  sought  to  be  condemned  is  "not 
being  used,  or  held  to  be  used,  for  development  by  its  owner."  The 
sum  of  $2,000,000  intended  to  be  spent  by  the  plaintiff  on  this  plant 
is  evidence  for  the  jury  to  consider  whether  it  is  seeking  bona  fide  to 
take  the  defendants'  water  power  merely  for  an  interurban  railroad  or 
to  create  a  water  power.  Indeed,  the  complaint  avers  an  intention  to 
build  a  very  short  railroad  and  "to  sell  its  surplus  power."  In  the 
latter  event  the  plaintiff  cannot  condemn  even  an  unused  water  power. 

The  plaintiff  says  it  will  not  sell  its  half  of  this  water  power,  Avhich  is 
only  a  small  part  of  its  holding,  for  $40,000,  but,  strangely  enough,  it 
insists  that  it  shall  be  allowed  to  use  the  "strong  arm"  of  the  law  to 
take  all  the  water  power  of  the  defendants,  being  the  other  half  of 
the  stream  at  this  point,  for  $10,000.  Such  claim  is  not  founded  in 
justice,  without  respect  to  persons,  nor  consonant  to  the  sentiment  of 
the  ages.  "J^athan  said  unto  David,  There  were  two  men  in  one  city, 
the  one  rich  and  the  other  poor.  The  rich  man  had  exceeding  many 
flocks  and  herds ;  but  the  poor  man  had  nothing  save  one  little  ewe  lamb, 
which  he  bought  and  nourished  up ;  and  it  grew  up  Avith  him  and  with 
his  children;  it  did  eat  of  his  own  meat  and  drank  of  his  own  cup  and 
lay  in  his  bosom,  and  was  unto  him  as  a  daughter.  And  there  came  a 
traveler  unto  the  rich  man  and  he  spared  to  take  of  his  own  herd  to 
dress  for  the  wayfaring  man  that  had  come  unto  him,  but  took  the  poor 
man's  lamb  and  dressed  it  for  the  man  tha.t  was  come  unto  him." 
2  Samuel  xii,  v.  1-4. 

We  know,  too,  the  story  of  INTaboth's  Vineyard,  I  Kings,  ch.  xxi. 
They  who  have  been  to  Potsdam  near  Berlin  will  remember  that  when 
Frederick  the  Great  was  gathering  in  the  lands  to  make  the  famous  park 
for  his  palace  at  Potsdam,  there  was  a  miller  whose  little  tract  was  in- 
cluded within  the  bounds  of  the  park,  who  refused  to  sell  it  at  any  price. 
When  the  great  king  was  advised  to  take  it  anyway,  though  one  of  the 
most  arbitrary  of  men,  he  replied :  "Let  the  miller  keep  his  mill,  that 
it  may  be  known  that  there  is  law  in  Prussia."  The  rustic  mill  still 
stands,  kept  in  repair  at  public  expense,  and  on  it  in  gold  letters  there 
still  abides  this  inscription :  "Let  the  miller  keep  his  mill,  that  it  may 
be  known  that  there  is  law  in  Prussia." 


11 

Railway  Co.  v.  Power  Co. 


Hoke,  J.,  dissenting :  When  this  case  was  formerly  before  the  Court 
it  was  decided  that  the  question  at  issue  between  the  parties  should  be 
referred  to  the  jury.  In  a  concurring  opinion  then  filed  my  opinion 
was  stated  as  follows : 

"Our  statute,  in  permitting  water  powers  to  be  condemned  for  public 
use,  withdraws  from  the  eifect  of  the  law  any  water  power  which  is  being 
used  or  held  to  be  used  or  to  be  developed  for  use  in  connection  with  or 
in  addition  to  any  power  actually  being  used  for  public  service,  etc. 

"There  is  evidence  in  the  record  tending  to  show  that  defendant  is  the 
riparian  owner  of  land  on  one  side  of  Green  River,  where  there  is  a  con- 
siderable fall  in  the  stream,  giving  promise  of  a  good  water  power,  if 
properly  developed.  The  officials  of  the  company  testified,  further, 
that  defendants  purchased  and  now  hold  this  property  with  a  view  to 
aid  their  power  already  developed  and  now  being  used  under  a  charter 
for  the  benefit  of  the  public;  that  they  have  great  need  of  such  unde- 
veloped power  and  purpose  to  utilize  the  same  as  contemplated  and  pro- 
vided by  the  statute. 

"Whether  they  can  carry  their  purpose  and  utilize  this  power  in  sub- 
stantial aid  of  the  power  already  developed,  and  without  unwarranted 
interference  with  the  rights  of  the  plaintiffs,  who  own  along  the  oppo- 
site bank,  is,  in  my  opinion,  a  mixed  question  of  law  and  fact,  and,  on 
the  record,  requires  that  the  issue  be  submitted  to  the  jury." 

On  further  consideration,  I  am  confirmed  in  the  opinion  thus  ex- 
pressed, that  the  issue  should  be  referred  to  the  jury,  and  I,  therefore, 
dissent  from  the  present  disposition  of  the  appeal. 


HISTORY   OF  THE   SUPREME   COURT   REPORTS   OF   NOF 


CAROLINA   AND   OF  THE  ANNOTATED   REPRlNTSi 

A  (9 


By  WALTER  CLARK 


C|^-i  4-T.  ^V 


' '  T'?  h 


The  annotated  reprint  of  our  Reports  has 
•n  made  under  the  authority  conferred  on  the 
cretary  of  State  by  Laws  1885,  ch.  309,  and 
3sequent  statutes,  now  Revisal,  5361,  whieh 
3  been  further  amended  by  Laws,  1917,  chap- 
s  201  and  292. 

[t  may  be  of  interest  to  the  profession  and 
the  public  to  give  some  data  as  to  our  origi- 
[  Reports  and  the  Annotated  Edition ;  163 
umes  have  been  reprinted  with  annotations, 
!se  being  all  the  volumes  from  1  to  164,  iii- 
sive,  excepting  only  volume  148. 
rhe  first  7  volumes  of  IST.  C.  Reports  Avere 
:  official,  but  as  in  England  till  1865,  report- 
;  was  a  private  enterprise.  When  the  I^.  C. 
preme  Court  as  a  separate  tribunal  Avas  cre- 
d  in  November,  1818,  to  take  effect  from  1 
nuary,  1819,  the  Court  was  authorized  to 
3oint  a  Reporter  Avith  a  salary  of  $500  on 
idition  that  he  should  furnish  free  to  the 
ite  80  copies  of  the  Reports  and  one  to  each 
the  62  counties  then  in  the  State,  and  it 
ms  that  he  was  entitled  to  the  copyright, 
ter  this  was  changed  to  101  copies  for  the 
ite  and  counties  and  a  salary  of  $300  and  the 
)yright.  In  1852  the  salary  was  raised  to 
)0  and  the  number  of  free  copies  to  the  State 
1  counties  and  for  exchange  with  the  other 
ites  was  increased,  103  N.  C,  487. 
rhe  price  charged  by  the  Reporter  to  lawyers 
1  others  was  1  cent  a  page,  so  that  the  63 
C.  was  sold  at  $7  per  volume,  the  64  iST.  C. 
$9.50,  and  the  65  K  C.  at  $8.  Being  sold 
the  page,  it  was  more  profitable  and  much 
3  labor  to  the  Reporter  to  print  the  record 
1  the  briefs  of  counsel  very  fully  Avithout 
Qpression  in  the  statement  of  facts.  These 
ces  being  prohibitiA^e,  the  Official  Reporter 
3  abolished,  Laws  1871,  ch.  112,  and  the 
;ies  Avere  put  on  the  Attorney-General,  who 
3  alloAved  therefor  an  increase  of  $1,000  in 
ary,  and  the  State  assumed  all  the  expense 
printing  and  distributing  and  selling,  5  per 
t  commission  being  alloAved  for  selling, 
ie,  3363,  3728. 

[n  1893,  ch.  379,  the  system  Avas  again 
mged  and  the  Court  was  allowed  to  employ  a 
porter  for  $750.  This  has  been  amended  by 
•sequent   acts,   so   that  noAV   the  Reportei-  is 


could  not  be  had  at  all  and  others  br^ 
per  volume.  To  meet  this  condition,  I 
ch.  309,  with  the  amendments  aboA'e  re 
being  now  Revisal,  5361,  was  passed  i 
ize  the  Secretary  of  State  to  reprint  th 
already  out  of  print  and  such  other; 
time  to  time  should  become  out  of  p 
a  provision  that  no  money  should  be 
the  purpose  except  that  derived  fron 
of  the  Reports.  As  the  price  of  thi 
had  been  reduced  to  $2  per  volume,  ar 
$1.50,  this  work  of  reprinting  coulc 
only  by  omitting  briefs  and  by  cuttii 
the  unnecessary  matter  in  the  state 
facts,  as  had  been  done  by  Judge  Cui 
TJ.  S.  Supreme  Court  when  he  repi 
first  58  A^olumes  of  that  Court  in  21 
In  our  Reports,  these  statements  of  ca 
a  very  recent  date)  were  ahvays  ma^ 
Reporters,  and  not  by  the  judges,  and 
Avere  already  omitted  in  our  current 

At  the  request  of  the  then  Secretar; 
and  his  successors,  the  writer  undei 
AA^ork,  and  to  make  the  A'olumes  mor 
he  Avas  requested  to  iannotate  them,  v 
done  for  most  of  the  time  without  ai 
Shepard's  Annotations  were  not  iss 
1913,  after  most  of  these  reprints  had 
notated.  Besides  this,  in  the  first  foui 
as  issued,  there  was  no  Index  of  Repor 
and  there  was  no  re  Averse  index  to  the 
Cases  till  84  N.  C.  There  was  no  tabl. 
Cases  until  92  'N.  C,  and  no  rcA'erse 
Cited  Cases  till  143  N.  C.  The  Anno 
therefore  to  correct  these  defects  by  }: 
full  indices  and  reverse  indices  of 
Cases  and  Cited  Cases  and  has  supei 
revised  proof  of  all  163  A'olumes. 
labors,  the  payment  at  first  Avas  $25  pe 
including  annotations,  condensing  th< 
er's  statements  of  fact  when  unnecess: 
lix,  and  all  work  of  every  kind.  But 
volumes  being  larger  and  the  annotati 
numerous,  $50  per  A'olume  Avas  alloAv 
laAA^yer  Avill  see  that  this  work  Avas  ui 
in  the  interest  of  the  profession  and  1 
and  not  for  the  compensation. 

OAving  to  the  fact  that  as  to  these 


e  State  lost  by  fire  47,000  of  the  Keports 
red  in  Uzzell's  Bindery,  with  the  result 
ny  additional  volumes  were  required  to 
nted,  and  others  that  had  already  been 
?d  and  reprinted,  were  reprinted  a  sec- 
iie,    the    annotations,    however,    being 

down  to  date. 

lurrent  Reports  are  sold  at  $1.50,  from 
le  commission  of  12yo  per  cent  for  sell- 
leducted,  i.  e.,  about  19  cents,  making 

return  to  the  State  $1.31  per  volume, 
wing  largely  to  the  increase  in  the  cost 
setting,  presswork,  paper  and  binding, 

to  the  State  of  the  174  N.  C.  is  $1.94 
7,  without  charging  into  the  cost  of  ])ro- 

any  part  of  the  compensation  of  the 
r  and  his  clerk.  The  next  Legislature 
Libtless  raise  the  price  of  the  current 
,  if  not.  of  the  Reprints  also. 
.  the  more  recent  volumes  the  statement 
ases  has  been  made  by  the  Judges  them- 
n  each  case,  and  hence  in  reprinting 
)lumes  there  has  been  no  abbreviation 
statement  of  the  case.  In  the  earlier 
I  there  has  been  a  saving  often  of  50 
t  by  condensation  of  the  prolix  record 
vas  often  used  instead  of  a   statement 

the  omission  of  the  briefs.  Even  in 
le  original  reports,  notwithstanding  the 
latters  printed  therein,  it  has  sometimes 
and  useful  by  the  Court  to  refer  to  the 

record, 
igland  there  was  no  official  reporter  till 
Prior  to  that  time  all  the  reporters  were 
3rs  without  any  supervision.  As  a  re- 
.ny  of  the  English  Reports  were  very 
ate,  as  has  been  shown  from  investiga- 
ade  in  the  Year  Books  and  the  Court 
1  by  Professor  Vinogradoff  and  others. 
)ldworth's  "Year  Books";  Pollock  & 
d's  History  of  English  Law.  These  re- 
were  sometimes  incompetent  and  more 
ireless,  which  is  to  be  regretted,  as  the 
s  of  the  English  judges  were  usually,  if 
ays,  delivered  orally  from  the  bench  and 
)rters  were  not  always  careful  to  correct 
ves  by  examination  of  pleadings  and 
And  as  the  common  law  is  made  up  of 
3cisions  of  the  judges,  under  the  guise. 
Lie,  of  "declaring  the  law,"  it  has  been 
hanged  from  what  was  announced  by 
ich.  See  Veeder's  "English  Reports." 
,  down  till  Blackstone's  time,  the  plead- 
d  records  were  kept  in  dog  Latin  (and 

iifflv    CPiisnrpd    tbp    plimio-p    tn    Eno-lisli'^ 


man  French. 

]^o where  outside  of  the  English-spi 
countries  are  the  opinions  of  the  Courts  alli 
to  be  quoted  as  precedents.  In  France  an 
other  countries,  the  Court  makes  a  su<- 
statement  of  the  facts,  numbered  under  1 
ings,  and  then  merely  cites  the  section  o: 
Code  applicable,  without  comment.  In  Eni 
speaking  countries,  in  which  alone  the  Re 
of  decisions  are  allowed  to  be  cited,  the  nu 
of  the  volumes  of  the  Reports  in  1890 
8,000.  These  have  now  increased  to  3i 
volumes.  This  system  is  breaking  down  i 
its  own  Aveight.  No  private  library  and 
public  libraries  can  possibly  keep  up  witl 
rapidly  rising  flood  of  Reports.  It  is  onl 
the  aid  of  compilations  like  "Cyc."  an 
second  edition,  the  "Corpus  Juris.";  A.  i 
and  R.  C.  L.,  and  the  like,  that  we  can  hav( 
access  to  the  vast  quantity  of  reported  decif 

In  those  countries  Avhere  citations  of  fc 
decisions  are  not  allowed,  the  argument  is 
the  Courts  of  the  present  day  are  more  lik( 
be  right  than  those  in  the  ])ast,  and  that  t( 
former  decisions  is  simply  a  race  of  diligeii 
counting  conflicting  opinions,  a  precedent 
readily  found  to  sustain  any  proposition, 
have  been  accustomed  to  the  present  systen 
are  still  able  to  wade  thru  by  use  of  the 
pilations  cited ;  but  this  relief,  in  view  o 
steadily  increasing  output  of  Reports,  is 
temporary  and  the  profession  and  the  C 
must  inevitably  be  submerged  beneath  the 
What  the  remedy  will  be  is  a  matter  engi 
the  attention  and  arousing  discussion  a: 
the  ablest  men  of  the  Bench  and  Bar. 

On  an  average,  the  opinions  of  this  Cour 
require  3  volumes  a  year.  If  the  briefs 
redundant  statements  were  still  inserted 
the  earlier  Reports,  it  would  require  10  vol 
per  year,  taxing  the  shelf  room  and  purs 
lawyers.  It  was  therefore  eminently  prop 
reprinting  to  cut  out  the  briefs  and  reduc 
superfluous  records.  This  required  the  ex( 
of  judgment  and  much  labor,  but  it  was 
lutely  necessary  in  order  that  the  rec 
might  furnish  funds  for  other  Reprints  t 
quired  by  the  statute.  Many  of  the  Rej 
are  consequently  from  a  third  to  a  half  tin 
of  the  former  volumes.  The  American 
Association,  voicing  the  general  sentiment 
passed  resolutions  requesting  all  Courts  1 
duce  the  size  of  current  Reports  by  the  Ji 
shortening  their  opinions,  a  request  whicl 
been  presented  to  this  Court  thru  a  d 
gviished  member  of  the  Association  and  o 


BANK    V     REDWINE 

FROM    UNION 
VOL.  171  N,  C.  REPORTS 


Can  a  Prior  Registered  Mortgage, 
Acknowledged  Before  a  Duly 
Appointed  and  Acting  Deputy 
Clerk,  Be  Set  Aside  Merely  Be- 
cause THE  Deputy  Happens  to 
BE  A  Woman? 


DISSENTING   OPINION 

BY 

CHIEF  JUSTICE  WALTER   CLARK 


RALEIGH 

Edwards  a  Broughton  Printing  Company 

1916 


BANK  V.  REDWINE 

FROM    UNION 

VOL.  171  N.  C.  REPORTS 


CAN  A  PRIOR  REGISTERED  MORTGAGE,  ACKNOWLEDGED 
BEFORE  A  DULY  APPOINTED  AND  ACTING  DEPUTY  CLERK, 
BE  SET  ASIDE  MERELY  BECAUSE  THE  DEPUTY  HAPPENS 
TO  BE  A  WOMAN? 


Clakk,  C.  J.,  dissenting:  Tlie  plaintiff  bank,  holder  of  a  junior  reg- 
istered mortgage,  seeks  to  restrain  John  C.  Sikes,  trustee  for  R.  B.  Red- 
wine,  from  proceeding  to  sell  ten  shares  of  stock  of  the  lumber  company 
conveyed  in  a  prior  registered  deed  of  trust  to  him  by  the  same  grantor, 
E.  C.  Williams.  It  is  admitted  that  said  deed  to  Redwine  was  registered 
first  upon  a  probate  thereof  which  was  taken  and  certified  by  the  deputy 
clerk  of  the  Superior  Court,  Mrs.  Katheriiie  Huntley,  who  at  the  time 
of  taking  the  probate  was  Miss  A.  K.  McDowell. 

The  point  is  made  in  the  plaintiff's  brief  that  the  registration  of  the 
Redwine  deed'  is  void  "because  the  deputy  clerk  was  a  woman,  and, 
therefore,  not  qualified  to  administer  an  oath."  The  opinion  of  the 
Court  holds  with  that  contention,  and  if  such  holding  is  correct,  the 
other  points  discussed  in  the  opinion  are  unnecessary  and  merely  ohitei' 
dicta.  The  point  is  one  of  far-reaching  importance  to  the  public,  lies 
at  the  root  of  this  matter,  and  it  is  not  necessary  to  do  more  in  this  dis- 
sent than  to  give  the  reasons  why  the  writer  does  not  concur  in  that 
conclusion. 

This  Court  has  repeatedly  held  that  registration  upon  an  invalid 
probate  is  void.  Todd  v.  Outlaw,  79  JST.  C,  235;  Long  v.  Crews,  113 
1^.  C,  256;  Lance  v.  Tainter,  137  N".  C,  249  ;  and  there  are  other  cases 
to  the  same  purport.  In  Long  v.  Crews,  113  JST.  C,  258,  the  Court  held 
that  "the  attempted  acknowledgment  of  the  deed  in  trust  before  an  of- 
ficer disqualified  to  act  is  a  nullity,"  and  could  not  be  cured  by  registra- 
tion. 

The  question,  therefore,  is  simply  whether  a  woman  is  disqualified  to 
act  as  deputy  clerk  of  the  Superior  Court.  The  probate,  like  any  other 
judgment,  is  no  judgment  if  the  official  had  no  authority  to  make  it. 

The  decision,  aside  from  its  effect  on  the  parties  to  this  action,  is  one 
of  great  importance  to  the  public.  Not  only  the  deputy  clerk  taking 
this  probate  in  Union  County  was  a  woman,  but  three  other  ladies 
have  filled  the  same  position  in  that  county  in  recent  years,  and  if  this 


Bank  v.  Redwine. 


probate  is  invalid  because  taken  before  a  woman,  it  may  seriously  affect 
a  large  number  of  titles  in  that  county  as  well  as  tbe  validity  of  legal 
proceedings  wbicb  have  been  verified  before  tbem.  Besides,  in  Sampson 
also  and  other  counties  in  this  State  it  is  well  known  that  women  have 
discharged  the  duties  of  deputy  clerk.  In  Henderson  County  and  some 
others  women  have  very  acceptably  discharged  the  duties  of  deputy 
register  of  deeds.  It  did  not  occur  to  the  clerks  and  registers  in  those 
counties  that  there  was  any  innate,  inherent  inferiority  in  women  which 
made  it  improper  for  them  to  discharge  those  duties,  which  they  doubt- 
less did  faithfully  and  acceptably,  and  the  intelligent  lawyers  in  those 
counties  were  evidently  not  able  to  point  out  any  provision  in  the  State 
Constitution,  or  in  the  statutes,  which  disqualified  women  from  hold- 
ing those  positions. 

Deputy  clerks  are  appointed  by  the  clerks  and  are  paid  by  the  clerks 
themselves,  except  in  the  counties  where  the  officers  are  on  a  "salary 
basis."  Revisal,  989,  provides  that  probates  and  acknowledgments  of 
all  instruments  may  be  made  "before  the  deputy  clerks  of  the  Superior 
Courts."  ]^either  that  statute  nor  any  other  requires  that  such  deputies 
shall  be  males.  The  assertion  that  in  North  Carolina  women  cannot 
hold  such  position,  or,  indeed,  any  other,  is  challenged  by  this  case.  The 
rights  of  the  parties  depend  upon  this  question. 

Approaching  the  subject  freed  from  preconceived  opinions,  Ave  shall 
find  nothing  that  disqualifies  women  from  holding  this  position  either 
in  our  Constitution  or  in  our  statutes  or  in  our  system  of  government, 
nor  in  England,  from  which  we  derive  our  laws. 

The  only  provision  in  the  Constitution  which  refers  to  a  "voter"  in 
any  connection  with  "office"  is  in  the  Constitution  of  1868,  and  that, 
as  we  said  in  S.  v.  Bateman,  162  N.  C,  581,  is  not  a  provision  disqual- 
ifying from  office  every  one  who  is  not  a  voter.  But  the  provision  is 
"just  the  opposite,"  and  prohibits  a  voter  from  being  disqualified  for 
office.  We  pointed  out  the  reason  for  this,  which  did  not  exist  under  the 
previous  Constitution  of  this  State,  in  that  in  1868  a  large  number  of 
colored  voters  were  enfranchised  and  the  convention  that  framed  the 
Constitution,  fearing  that  in  the  future  there  might  be  an  effort  to 
disqualify  them  to  hold  office,  provided  that  every  voter  should  be 
eligible  to  office,  with  the  disqualifications  mentioned  further  on  in  the 
Constitution.  It  would  be  singular  if  negro  men  are  competent,  while 
white  women  are  their  political  inferiors. 

The  constitutional  provision,  therefore,  it  will  be  seen,  does  not  dis- 
qualify women  from  holding  any  office,  even  constitutional  ones.  It 
merely  prohibits  the  disqualification  of  voters  from  holding  office  unless 
disqualified  by  the  Constitution  itself.  Art.  VI,  see.  8,  and  Art.  XIV, 
sec.  7. 


Bank  v.  Redwine. 


The  convention  that  formed  the  Constitution  seems  to  have  had  the 
most  implicit  faith  that  the  people  were  competent  to  select  their  own 
officers,  and,  therefore,  Art.  VI  imposes  no  disqualification  upon  anj  one 
to  hold  office  except  those  named  in  the  above  sections.  "The  Amend- 
ment of  1900,  while  imposing  some  restriction  upon  suffrage,  left  in- 
tact the  provision  that  all  who  continued  to  be  'voters'  remained 
eligible  to  office."     8.  v.  Bateman,  supra. 

This  decision,  rendered  as  recently  as  the  spring  of  1913,  calls  atten- 
tion clearly  to  the  fact  that  our  Constitution  does  not  prohibit  any  one 
from  holding  office  because  not  a  voter,  but,  on  the  contrary,  merely 
prohibits  the  Legislature  from  disqualifying  any  voter  from  holding 
office. 

The  preconceived  opinion  that  women  are  disqualified  to  hold  any 
office  is  based  upon  the  error  that  the  qualification  for  suffrage  and  the 
qualification  for  office  are  the  same.  This  is  not  true,  and  never  has 
been  so  under  any  of  .the  Constitutions  of  this  State.  Our  present  Con- 
stitution clearly  prescribes  a  qualification  for  suffrage,  but  except  as  to 
the  age,  which  is  required  as  to  certain  State  officers  therein  named, 
there  is  no  qualification  required  for  office,  but  that  is  left  to  the  sound 
judgment  of  the  voters.  It  is  not  even  required  that  judges  shall  be 
lawyers.  The  Legislature  is  merely  prohibited,  as  is  seen,  to  disqualify 
any  voter  from  holding  office. 

Under  the  Constitution  of  this  State  adopted  at  Halifax  in  1776, 
many  were  disqualified  from  voting  who  were  eligible  to  office,  and 
many  were  disqualified  from  office  who  were  eligible  to  vote.  For  in- 
stance, up  to  the  Convention  of  1835  no  one  was  eligible  as  a  voter  to 
choose  the  Governor,  the  judges,  or  the  State  officers,  unless  he  was  a 
member  of  the  Legislature;  and  up  to  1856  no  one  could  be  a  voter  in 
the  election  of  a  State  Senator  unless  he  owned  50  acres  of  land.  On 
the  other  hand,  citizens  were  eligible  to  the  State  offices,  to  the  judge- 
ships, and  for  United  States  Senator,  even  though  they  were  not 
qualified  electors  for  those  positions  because  not  members  of  the  Legis- 
lature. Qualifications  for  office  were  required  which  were  not  required 
for  the  electors  for  such  office :  for  instance,  a  member  of  the  Senate 
was  required  to  own  not  less  than  300  acres  of  land  in  fee,  while  an 
elector  for  that  position  was  required  to  own  only  50  acres.  A  member 
of  the  House  was  required  to  own  not  less  than  100  acres  of  land, 
while  an  elector  for  that  position  was  required  only  to  be  21  years  of 
age  and  to  have  paid  his  taxes.  The  Governor  was  required,  as  he  is 
Mill,  to  be  30  years  of  age,  but  the  requirement  then  and  now  as  to  the 
voters  is  21  years. 

On  the  other  hand,  though  those  otherwise  qualified  were  disqualified 
to  vote  unless  21  years  of  age,  there  was  no  disqualification  by  reason 


Bank  v.  Redwine. 


of  age  as  to  holding  office  (except  as  to  the  Governor),  and  there  were 
instances  of  men  serving  in  the  Legislature  under  21,  though  they  could 
not  vote  themselves  for  such  memhers.  The  changes  in  1835  and  since 
have  consisted  in  removing  property  qualifications  for  voting  and  for 
holding  office  and  by  adding  the  new  requirements  that  a  Senator  must 
be  25  years  of  age,  that  a  member  of  the  House  must  be  "a.  qualified 
voter" — the  only  instance  of  this — but  (except  for  the  Governor  and 
Lieutenant  Governor)  there  is  no  age  requirement  as  to  any  other  offi- 
cers, and,  singularly  enough,  there  is  no  requirement  that  these  last  two 
or  any  other  officers  than  member  of  the  House,  shall  be  a  voter.  The 
provision  as  to  the  Governor  is  that  he  must  be  a  "citizen  of  the 
United  States  and  a  resident  of  this  State."  As  far  as  possible,  our 
present  Constitution  has  left  the  qualifications  for  office  to  the  voters  or 
the  appointing  power,  as  the  case  may  be,  the  restriction  being,  as 
already  stated,  that  the  Legislature  shall  not  disbar  a:iy  one  who  is  a 
voter  from  being  eligible  to  any  office  (with  the  above  qualifications  as 
to  the  age  of  certain  officials)  except  as  provided  in  section  8  of  Art. 
YI,  and  sec.  7,  Art.  XIV  of  the  Constitution. 

"We  look  in  vain  in  the  Constitution,  as  it  is  written  by  the  Convention 
and  ratified  by  the  people,  to  find  any  disqualification  placed  on  women 
to  hold  any  office  in  the  State.  In  that  respect  we  pursued  the  same 
policy  as  the  Constitution  of  the  United  States,  under  which  women 
are  eligible  for  any  position  from  President  to  United  States  Com- 
'  missioner.  Under  the  Federal  Government  women  have  held  thousands 
of  positions,  a  large  number  of  them  being  postmasters,  and  they  have 
filled  many  other  positions,  among  them,  Collector  of  Internal  Revenue. 
In  the  same  absence  of  restriction  in  our  State  Constitution  as  in  the 
Federal  Constitution,  there  is  no  reason  why  the  women  of  North  Car- 
olina who  are  competent  to  hold  any  position  in  the  Federal  Govern- 
ment should  be  disqualified  from  holding  any  position  under  the  State 
to  which  they  can  secure  an  appointment  or  an  election. 

Certainly  there  can  be  no  reason  why  a  woman  cannot  be  a  deputy 
clerk,  when  she  can  be  a  postmaster,  since  there  is  neither  statute  nor 
constitutional  provision  giving  them  greater  recognition  under  the  Fed- 
eral Government  than  under  the  State. 

Surely,  as  to  the  position  of  deputy  clerk,  a  woman  should  not  be 
held  ineligible,  since  we  have  held  that  a  minor,  who  cannot  be  a  voter, 
is  eligible  to  be  a  deputy  sheriff.  R.  R.  v.  Fisher,  109  'N.  C,  1 ;  Yeargin 
V.  Siler,  83  N.  C,  348.  In  the  latter  case  it  is  held  that  a  minor  can 
be  a  general  deputy  sheriff  as  well  as  a  special  deputy  sheriff,  and  that 
"this  is  the  current  of  authority  in  this  country." 

If  we  could  import  into  our  Constitution  words  and  phrases  which 
are  not  there,  because  of  the  supposed  custom  that  Avomen  were  dis- 


Bank  v.  Redwine. 


qualified  in  England,  we  will  find  that  this  suggestion  is  equally  un- 
founded. From  the  time  of  William  the  Norman,  the  founder  of  the 
dynasty  "vvhieh  still  reigns  in  England,  there  have  been  forty  executive 
heads  of  the  Government,  and  of  these  seven  have  been  women.  Among 
these,  the  two  ablest  executives,  certainly  the  two  most  illustrious  and 
successful,  the  first  of  whom  reigned  for  forty-five  years  and  the  latter 
for  sixty-four,  were  Elizabeth  and  Victoria.  In  that  country  women 
have  held  many  other  high  positions,  and  among  them,  as  all  lawyers 
know,  the  highest  legal  position  in  England,  that  of  Lord  Chancellor, 
was  held  by  a  woman,  Eleanor  of  Provence,  nearly  a  century  before 
any  man  was  trusted  in  that  high  office  other  than  an  ecclesiastic. 
Women  have  held  many  other  positions  in  England  of  every  kind 
(among  them  that  of  sheriff,  who  there  is  a  judicial  officer  and  sits  on  the 
bench  with  the  judges),  though  they  were  not  voters  until  thirty  years 
ago,  when  they  were  granted  municipal  suffrage.  (This  shows  that  there, 
as  well  as  here,  qualifications  for  suffrage  and  qualifications  for  office 
are  not  the  same,  the  choice  as  to  officers  not  being  restricted  by  any  arti- 
ficial barriers  as  to  seX,  but  left  to  the  sound  judgment  of  the  electors  or 
the  appointing  power.  I 

We  know  that  in  other  countries  the  greatest  executives  have  been,  in 
Eussia,  Catherine  the  Great;  in  Austria,  Maria  Theresa;  in  Spain, 
Isabella,  and  among  the  sovereigns  now  on  the  throne,  in  the  present 
great  world  catastrophe,  none  has  steered  the  ship  of  state  more  safely 
than  Queen  Wilhelmina  of  Holland.  Evidently  there  is  no  inherent 
inferiority  which  has  disqualified  women  for  even  the  highest  ofiices. 

The  Salic  law"  which  barred  women  from  being  the  sovereign,  the 
highest  office,  did  not  exist  in  any  country  in  Europe  (outside  of  Tur- 
key) except  in  Erance.  That  law  was  based  on  the  idea  that  the  chief 
executive  should  be  a  fighter.  The  modern  republican  conception  is  that 
the  qualification  for  office  is  not  physical  strength,  but  mental  capacity 
and  character.  There  is,  therefore,  no  ground  to  write  the  Salic  law 
into  our  Constitution. 

Nor  is  there  anything  in  Scripture,  as  it  has  been  asserted,  against 
it,  for  we  know  that  Deborah  was  ruler  over  all  Israel,  with  supreme 
power,  both  executive  and  judicial. 

But  it  is  urged  that  the  duties  of  the  deputy  clerk,  though  not  a  very 
high  position,  are  "judicial."  It  is  perhaps  natural  that  judges  should 
think  that  "duties  judicial"  require  a  peculiar  qualification  of  mind. 
They  would  not  like  to  say,  perhaps,  "a  mind  superior  to  that  possessed 
by  women,"  but  "a  mind  of  a  different  cast  from  that  of  women,"  for 
though  they  have  been  able  sovereigns,  they  might  not  make  good 
judges,  and  might  be  "too  emotional"  to  properly  probate  this  deed  in 
trust!  But  Sacred  History  says  that  Deborah,  when  she  was  "Judge 
over  all  Israel,  judged  wisely,"  and  that  during  her  judicial  adminis- 


Bank  v.  Redwine. 


tration  of  forty-five  years  "Israel  had  peace" — after  the  brilliant  vic- 
tory which  proved  her  genius  for  war  as  well  as  in  peace.  We  know, 
too,  that  Portia  won  great  fame  as  a  judge  in  a  great  case,  and  in  Eng- 
lish law,  as  already  stated,  from  the  !Norman  conquest  in  1066  down  to 
1341,  when. Sir  Robert  Bourchier  was  the  first  layman  appointed,  the 
only  Lord  Chancellor  who  was  not  an  ecclesiastic  was  Eleanor  of  Pro- 
vence, who  was  appointed  Lord  Chancellor  in  1253,  and  Lord  Campbell 
in  his  "Lives  of  the  Lord  Chancellors"  says  that  she  sat  in  the  Aula 
Regis  in  person  and  administered  the  duties  of  her  high  position  with 
vigor. 

There  is  nothing  in  our  statute  that  prohibits  a  woman  from  being  a 
deputy  clerk.  The  provision  in  the  statute,  cited  by  the  Court,  that  the 
clerk  shall  make  the  record  of  the  removal  of  the  deputy  "from  /its- 
office,"  is  no  implied  disqualification  of  women,  for  Revisal,  2831  (1), 
provides  that  in  all  statutes  "Every  word  importing  the  masculine  gen- 
der only  shall  extend  to  and  be  applied  to  females  as  well  as  to  males, 
unless  the  context  clearly  shows  to  the  contrary."  This  is  the  well 
settled  previous  judicial  holding,  that  when  any  statute  uses  the  word 
^'his"  it  means  "his  or  her"  unless  something  in  the  context  prohibits. 

ISTor  will  it  be  any  answer  that  some  former  judges  have  expressed 
an  opinion  that  women  are  disqualified  for  office  by  our  Constitution. 
In  those  cases  the  point  was  not  made,  certainly  not  as  to  this  office. 
But  if  it  had  been,  those  judges  were  as  likely  to  err  as  are  the  judges 
of  today.  When  the  question  is  as  to  the  provisions  of  a  Constitution, 
the  inquiry  is  not  what  the  judges  on  some  other  occasion  have  said  that 
the  Constitution  provides,  but  what  does  it  in  fact  provide.  The  dis- 
qualification of  women  for  office  is  not  there.  We  can  read  as  well  as 
they,  and  the  test  is  not  what  they  said,  but  what  is  the  text  of  the  Con- 
stitution. 

"We  must  not  make  the  ivord  of  none  effect  by  our  traditions." 

Women  pay  taxes  and  own  approximately  one-half  of  the  property  of 
the  State,  for  they  inherit  equally  with  their  brothers  when  there  is  no 
will,  and  are  rarely  discriminated  against  when  there  is.  They  do  more 
than  one-half  the  work  of  keeping  up  our  civilization.  As  a  class,  they 
are  the  equals  of  mqn  in  intelligence  and  their  superiors  in  morality. 
Why  should  they  be  barred  from  all  public  employment  of  every  kind, 
or  of  any  kind?  The  Court  should  not  place  the  bar  sinister  of  dis- 
qualification upon  the  whole  sex,  and  disqualify  them  from  holding 
office,  unless  there  is  an  express  provision  of  the  Constitution. 

The  last  census  showed  that  out  of  950,000  persons  in  this  State  em- 
ployed outside  of  their  homes,  in  gainful  occupations,  275,000,  or 
nearly  30  per  cent,  were  females.  They  are  engaged  in  making  an  hon- 
est living;  aiad  while  women  are  rarely  aspirants  for  office,  even  in  the 
many  States  and  countries  where  they  now  enjoy  full  suffrage,  it  is  but 


Bank  v.  Redwine. 


right,  in  consideration  of  tlieir  contribution  of  labor  and  taxes  to  the 
public  weal,  that  they  should  not  be  debarred  from  obtaining  the  com- 
I)ensation  attached  to  an  office  like  this,  whose  small  compensation  is 
paid  by  the  clerk  himself,  Avhen  the  appointing  power  (the  clerk)  has 
deemed  them  competent,  and,  indeed,  has  selected  four  women  in  suc- 
cession for  the  duties  which  they  had  discharged  evidently  to  his  satis- 
faction. 

Even  if  any  judge  has  heretofore  expressed  an  opinion  (without  the 
thorough  light  which  has  now  been  thrown  upon  the  subject  by  the 
general  public  discussion  of  the  matter)  that  "women  are  ineligible  to 
office,"  such  previous  opinion  is  no  estoppel.  When  in  the  House  of 
Lords  an  ex-Lord  Chancellor  observed  to  Lord  Brougham  that  twenty 
years  previous  he  had  agreed  with  him  in  the  legal  views  then  ex- 
pressed, Brougham  replied :  "In  twenty  years  I  have  become  wiser. 
The  noble  Lord  has  had  the  same  opportunity."  In  a  debate  in  Con- 
gress, on  a  memorable  occasion,  an  opponent  made  a  similar  remark  to 
Robei't  Toombs  of  Georgia.  He  replied :  "That  is  one  of  my  discarded 
errors.     The  gentleman  may  defend  it,  if  he  can." 

LTpon  looking  at  the  subject  in  the  cold,  clear  light  of  the  words  of 
the  Constitution  and  of  our  statutes,  it  will  be  found  that  women  are  not 
disqualified  to  hold  office  either  by  the  Constitution  of  this  State  or  of 
the  Union,  nor  by  any  statute,  nor  by  the  precedents  in  England,  nor 
by  the  experience  of  other  countries,  nor  by  anything  that  can  be  cited 
from  the  Scriptures. 

Office,  from  the  Latin  "ojficium,,"  means  duty  or  service.  Officers  are 
public  servants.  Why  should  the  Constitution  prohibit  the  people  from 
getting  the  best  service  and  the  public  servants  they  may  desire  ?  There 
is  nothing  in  human  experience,  or  in  history,  to  sustain  the  idea  of  the 
inherent  incapacity  and  inferiority  of  women.  What  have  the  mothers, 
wives,  sisters,  and  daughters  of  the  voters  of  North  Carolina  done  that 
the  Constitutional  Convention  should  have  branded  them  with  the 
opprobrium  of  being  incompetent  to  render  public  service?  In  the 
language  of  Scripture,  "Have  they  not  done  us  good,  and  not  evil,  all 
the  days  of  our  lives?"  They  pay  taxes  and  are  subject  to  the  laws. 
Why  should  they  be  held  barred  from  the  honors  or  the  emoluments  of 
any  employment  which  the  voters  or  the  appointing  power  may  select 
them  to  discharge?  Why  should  the  defendant  Redwine  lose  the  prior- 
ity given  him  by  the  registration  of  his  mortgage  because  the  public 
official  furnished  him  by  public  authority  to  take  the  probate  (which  was 
done  in  due  form)  was  a  woman? 

If  the  prior  lien  of  the  defendant  Redwine  is  destroyed  for  this 
reason,  and  he  is  postponed  to  the  payment  of  the  junior  registered  lien 
of  the  plaintiff  bank,  he  should  at  least  have  the  right  to  reduce  the 
debt  of  the  bank,  which  is  thus  preferred  to  his  by  no  fault  of  his,  by 


10 
Bank  v.  Redwixe. 


striking  out  the  usury  therein  charged.  As  the  bank  has  appealed  to 
the  courts  to  get  this  advantage  over  the  defendant  Redwine,  who  held 
the  first  registered  mortgage,  the  bank  debt  should  not  go  ahead  of  his 
debt  except  to  the  extent  that  the  bank  debt  is  lawful,  that  is,  after 
purging  it  of  the  usurj. 

The  bank  ought  not  to  recover  its  debt  with  usurious  interest,  nor 
should  Redwine's  prior  registered  mortgage,  acknowledged  before  a  duly 
appointed  and  recognized  deputy  clerk,  be  invalidated  because  she  hap- 
pened to  be  a  woman.  She  exercised  only  the  power  of  all  deputy  clerks, 
as  conferred  by  Revisal,  989. 


Absolutelj;^  Necessary  For  Material  Development; 
Some  Suggestions  From  What  Has  Been  Done 
In  Europe. 


(Address  of  Chief  Justice  Walter 
Clark  at  the  uiass-mqpting  held  at  the 
Raleigh  Auditorium  Thursday  night, 
March  28,  in  the  interest  oi  the  Bank- 
head  Highway.) 

There  are  probably  few  men  \^ho  do 
not  complain  that  the  taxes  which  they  i 
pay  to  the  State,  county  and  city  gov-  \ 
eraments  are  too   high.     It  is  a  free  i 
•country  and  every  man  has  a  right  to  i 
his  opinion.     Certainly  every  man  who 
pays  taxes   has  a  right  to  have  those 
taxes  economically  and  judiciously  ex- 
pended, and   to   criticise   if   he   thinks 
that  they  are  not.  , 

But  there  are  at  least  throe  burdens 
which  we  bear  or  have  borne,  each  of  ■ 
which  is  many  times  iu  amount  the 
taxea  which  we  pay  to  our  govern- 
ment, including  the  Federal  war  tax. 
To  rid  ourselves  of  these  has  been  the 
task  of  years,  and  we  are  not  j'ct  free. 
And  until  wo  are  fi-ee  of  them  the 
State  and  city  can  not  develop. 

The  first  of  these  is  what  may  be 
called  the  saloon  tax.  I  will  not  worry 
you  with  statistics  which  are  familiar 
to  you  all,  but  the  cost  of  the  grain 
itself  which  was  distilled  into  injurious 
liquor  was  many  times  all  our  taxes,  so 
much  so  that  the  United  States  govern- 
ment and  other  governments  have  had 
to  prohibit  distillation  in  these  days 
that  the  people  may  not  suffer  for  food. 
Then  there  was  the  great  profits  paid 
retailers  and  the  result  that  more  than 
three-fourths  of  the  crime,  the  trial 
and  punishment  of  which  took  up  the 
time  of  our  courts,  was  caused  by  the 
use  of  intoxicating  liquor  and  that  suc- 
ceeding generations  were  burdened  with 
the  idiotic,  the  insane  and  the  crim- 
inals, caused  by  this  great  evil.  When 
agitation  first  arose  against  it,  the  lead- 
ers of  the  movement  were  ridiculed.  In 
1881  when  State-wide  jjrohibition  was 
submitted  to  our  people  it  was  de- 
feated in  North  Carolina  by  over  100,000 
majority.  In  1908  when  again  submit- 
ted it  carried  by  44.000,  and  today  90 
per  cent  of  the  people  and  of  the  area 
of  the  Union  is  under  prohibition.  A 
Constitutional  Amendment  prohibiting 
the  manufacturing  and  sale  of  ardent 


pie.    Yet  no  community  and  no  p'e'opTe' 
can  prosper  unless  they  are  wisely  andl 


tepirits    has    been    Passed    bv    Congress    ^^"''   *«   ^"''t'^^^  ,^P^"V  ^""^   "^^'^^f^f 


and  has  already  been  ratified  by  eleveii 
States.  There  can  be  little  doubt  that 
a  year  hence  it  will  have  been  ratified 
by  the  thirty-six  necessary  States  for 
that  purpose. 
The  second  great  burden  that  we  have 


widely  educated,  so  as  to  obtain  the 
full  development  of  the  powers  of  alH 
the  people.  Wc  have  now  on  hand  in 
Wake  county  a  proposition  to  increase 
the  fund  for  education  of  the  children^ 
of  the  county.  It  is  to  be  hoped  that'^ 
it  will  be  successful.  Taxes  for  that  pur- 
pose arc  incredibly  small  in  propor-i., 
tion  to  the  benefit  received.  One  of  tho 
strongest  arguments  for  equal  suffrage, 
besides  its  innate  justice,  is  that  wher- 
ever it  has  been  tried  the  vote  of  the 
\  women  has  been  overwhelmingly  for 
the  efficient  enforcement  of  the  laws 
against  intoxicating  liquor  &nd  iu  favor 
of  the  enormous  mud  tax  which  as 
education   of  their  children. 

Then  there  is  the  third  incubus  which 
weighs  upon  the  progress  and  devel- 
opment of  our  people  and  that  is  the 
mud  tax.  And  that  is  the  question  we 
are  here  to  consider.  Every  city  is  de- 
pendent for  its  growth  and  for  its  sup- 
port upon  the  country  around  it.  Un- 
less the  farmers  are  prosperous  there 
will  be  lack  of  food  and  of  enterprise 
in  your  cities  and  grass  will  grow  in 
your  streets.  The  farmers  can  not  be 
prosperous  unless  they  can  get  their 
products  to  market  without  the  payment 
of  the  enormous  mud  tax  whihe  has 
weighed  them  down. 

Formerly  every  city  of  any  size  was 
built  upon  a  river  because  the  river 
was  a  road  whose  surface  needed  no 
repairing.  When  the  system  of  rail- 
roads began,  the  growth  of  each  city  de- 
pended upon  the  rates  of  transportation. 
At  present  with  5,000,000  of  motors  of 
one  kind  or  another  in  the  Union  and 
more  than  75,000  of  them  in  North 
Carolina,  it  is  of  the  utmost  impor- 
tance to  a  growing  city  like  Ealeigh 
that  its  highways  shall  be  of  the  very 
best  and  shall  not  on\ir  attract  the 
thousands  of  automobiles  that  are  pass- 
ing through  our  borders  but  that  the 
highways  leading  into  Ealeigh  shall  be 
in  the  highest  condition. 

Two  thousand  years  ago  Eomo  laid 
out  and  built  that  magnificent  grystcm 
of  highways  radiating  from  the  golden 
milestone  in  the  Eoman  Forum  to  every 
point  of  her  vast  empire — to  Pontus,  to 


the  eagles  tiew  and  the  legions  marched 
These  roads  were  the  outstretched  arms 
which  so  many  long  centuries  held  to- 
gether that  great  empire  which  em- 
braced the  entire  civilization  of  the 
world.  So  well  constructed  were  these 
highways  that  many  parts  of  them  are 


In  the  first  place,  while  we  have  voted  to  larger  and  better  achooUiouses,  that 
already  largo  suras  for  the  construction  wo  urge  forward  thil  great  movement 
of  highways  wo  have  strangely  neglect- (  wMch  will  free  us  of  the  mud  tax  which 
ed  to  adopt  a  methodical  system  of  road|  has  so  long  been  an  incubus  upon  all 
maintenance,  with  the  result  that  in -'progress  and  development, 
many  sections  the  roads  are  wearing 
out  and  will  soon  be  gone,  while  the 
bonds  issued  for  their  construction  will  j 
remain  with  us  to  be  ijaid.  In  France, 
Germany  and  Italy  and  other  European 
countries  the  roads  are  kept  in  a  high 
state  of  efficiency  by  the  system  there 
adopted  which  assigns  to  a  given  num- 
ber of  miles  a  road  guardian -who  goes 
over  every  mile  of  his  charge  every  day 
from  end  to  end,  making  such  repairs. 
Under  the  principle  that  a  stitch  in  time 
makeg.  nine,  the  roads  are  thus  kept  in 
good  condition  and  at  a  minimum  cost. 

In  these  countries  they  have  adopted 
the  system  by  which  certain  main  thor- 
oughfares are  laid  out,  constructed  and 
maintained  by  the  general  government. 
These  are  known  as  national  roads, 
like  the  road  which  it  is  now  proposed 
that  we  shall  bring  to  Ealeigh. 

Then  there  is  a  secondary  system  of 
roads  known  as  departmental  roads, 
which  might  here  be  called  State  roads, 
which  are  built  and  maintained  by  the 
State  government,  being  mostly  for  in- 
terstate use.  And  then  there  are  the  j 
communal  roads  built  and  maintaiaed  i 
at  tho  cost  of  the  counties  and  town- 
ships. Those  who  have  traveled  in 
Europe  will  recall  that  especially  in 
Franco  and  Italy  all  these  roads  are 
bordered  by  a  row  of  trees  on  either  j| 
side,  a  most  picturesque  feature  of  the 
landscape,  but  they  serve  the  practical 
Ijurpose  that  in  summer  they  shade  the 
roads  and  keep  them  cool  and  moist 
enough  to  lighten  the  dust,  while  in  the 
rainy  season  their  roots  take  up  much 
of  the  moisture  and  keeps  the  roadbed 
firm  and  solid.  Besides  that  they  serve 
the  further  purpose  that  these  trees  are 
usually  fruit  trees  whose  fruit  when 
gathered  goes  far  to  sustain  the  cost 
of  keeping  up  the  roadbed,  and  when 
not  fruit  trees  the  alternate  trees  are 
cut  out  and  sold  for  fire  wood  for  the 
same  purpose,  new  trees  being  set.  It 
is  doubtful  if  we  could  make  a  better 
choice  for  that  purpose  than  by  putting 
a  line  of  pecan  trees  on  each  side  of 
our  public  roads. 

We  must  remember  that  every  pas- 
senger and  every  pound  of  freight  that 
passes  over  our  railroads  necessarily 
passes  over  some  road  or  street  tc^  reach 
the  railroad,  and  besides  t«u  times 
as  much  more  of  passengers  and  freight 
use  the  public  roads  which  never  get 
to  railroad  transportation. 

The  first  improvement  of  course  was 
in  the  streets  of  our  cities.  There  are 
men  now  present  who  can  remember 
seeing  geese  and  ducks  disporting  them- 
selves in  the  mud  and  ponds  of  water 
between  the  Yarborough  House  and  the 


•THE    RIGHT  OF  WOMEN  TO  MAKE  A  LIVING- 


DISSENTING    OPINION 


OF 


CHIEF  JUSTICE  WALTER  CLARK 


BICKETT  V.   KNIGHT 

IN   WHICH   THE  CHIEF  JUSTICE   SUSTAINS    THE    RIGHT  OF  THE  GENERAL 

ASSEMBLY  TO   AUTHORIZE  WOMEN   TO   ACT  AS    NOTARIES 

PUBLIC.       BROWN.  J..   ALSO    DISSENTING. 


Clark,  C.  J.,  dissenting :  There  is  but  one  question  presented  by  this 
appeal. 

The  General  Assembly  of  North  Carolina  at  its  late  session  enacted 
chapter  12,  Laws  1915,  as  follows:  ^'The  Governor  is  hereby  authorized 
to  appoint  women  as  well  as  men  to  be  notaries  public,  and  this  position 
shall  be  deemed  a  place  of  trust  and  profit,  and  not  an  office." 

Upon  this  authority  from  the  lawmaking  department  of  the  Govern- 
ment, to  whom  by  the  Constitution  that  duty  is  intrusted,  the  Governor 
of  the  State  issued  his  commission  to  Mrs.  !N"oland  Knight,  the  defendant, 
as  a  notary  public.  Thereafter  this  quo  warranto  proceeding  was 
brought,  averring  that  a  notary  public  was  not  a  place  of  trust  or  profit, 
as  the  Legislature  had  enacted,  but  was  in  truth  an  office,  and  therefore 
that  the  commission  issued  to  her  by  the  executive  department  of  the 
State  under  the  authority  of  the  Legislature  was  a  nullity  because  she 
was  a  woman. 

The  action  was  brought  before  Judge  Wehh  of  the  Superior  Court,  who 
sustained  the  action  of  the  General  Assembly  and  of  the  Governor,  and 
declined  to  hold  their  acts  void.  On  argument  in  this  Court,  the  Attor- 
ney-General, while  he  combated  some  of  the  propositions  of  the  defend- 
ant's counsel,  admitted  that  the  act  was  valid,  saying  then,  and  also  in  a 
written  opinion :  "In  the  face  of  the  legislative  declaration,  there  ought 
not  to  be  any  serious  trouble  about  the  matter." 

The  sole  question,  therefore,  is,  after  this  action  of  the  lawmaking 
department  and  the  Governor,  and  the  admission  of  the  relator,  the 
Attorney-General,  himself,  in  open  court,  "Ought  the  defendant  be  de- 
prived of  her  appointment  ?"  There  can,  of  course,  be  other  questions, 
more  or  less  collateral,  discussed,  but  that  is  the  sole  question  presented 
on  this  record.  If  she  can  be  thus  deprived,  it  can  be  done  only  upon  the 
ground  that  the  above  acts  of  the  Legislature  and  of  the  Governor  are  in 


violation  of  the  Constitution.  It  cannot  be  contended  that  the  Legisla- 
ture acted  ignorantly  or  unadvisedly.  In  that  body  there  were  many 
able  men,  among  whom  were  lawyers  of  acknowledged  prominence  and 
recognized  ability.  They  were  under  an  oath  to  support  the  Constitution, 
as  much  so  as  the  members  of  this  bench.  No  one  will  impute  to  that 
body  a  desire  to  evade  or  fraudulently  circumvent  the  Constitution  which 
they  were  sworn  to  support.  No  one  has  suggested  that.  The  matter  was 
fully  discussed  in  both  houses,  was  thoroughly  understood,  and  the  bill 
passed  the  General  Assembly  by  a  large  majority  in  both  houses. 

If  this  Court  deems  it  is  its  duty  to  so  decree,  it  ought  to  point  out  the 
paragraph  in  the  Constitution  which  gives  it  the  power,  in  its  opinion, 
to  hold  this  action  of  the  Legislature  and  the  Governor  in  violation  of 
the  Constitution;  for  the  Governor  as  well  as  the  members  of  the  Gen- 
eral Assembly  are  under  the  sanction  of  an  oath  to  maintain  the  Consti- 
tution. The  act  ''authorized"  but  did  not  require  him  to  appoint  women 
notaries  public. 

The  General  Assembly  of  1913  passed  an  act  in  almost  identical  terms 
authorizing  the  appointment  of  women  as  trustees  upon  the  public  school 
boards,  and  with  the  same  provision,  that  such  "position  shall  be  deemed 
a  place  of  trust  and  profit,  and  not  an  office."  That  act  has  been  recog- 
nized without  question  and  acted  upon.  One  hundred  and  fifty  women 
have  been  appointed  to  such  positions  and  have  discharged  the  duties 
thereof  with  credit  to  themselves  and  to  the  benefit  of  the  public. 

There  is  no  provision  of  the  Constitution  which  defines  an  "office," 
and  none  which  creates  the  position  of  notary  public.  The  Legislature, 
therefore,  could  not  act  in  violation  of  the  Constitution  in  drawing  the 
line,  as  it  did,  between  positions  of  trust  or  profit  and  offices.  Cer- 
tainly not,  unless  the  duties  of  a  notary  public  are  of  themselves  so 
inherently  an  office  and  unless  it  has  been  so  generally  recognized  as  such 
that  to  term  it  not  an  office  would  be  a  fraud  in  legislation. 

Every  department  of  the  State  Government  has  always  recognized  that 
a  notary  public  is  not  an  office,  for  in  this  Legislature,  as  in  preceding 
ones,  several  members  were  at  the  same  time  notaries.  The  Constitution 
forbids  persons  holding  two  offices  at  the  same  time.  Art.  XIV,  sec.  7. 
Yet  no  Legislature  has  ever  held  that  a  member  could  not  be  a  notary. 
The  Governors  (most  of  whom  have  been  lawyers)  have  appointed  mem- 
bers of  the  Legislature  to  be  notaries  while  continuing  to  sit  as  members, 
and  no  court  has  ever  held  the  act  of  any  notary  invalid  because  he  con- 
tinued to  act  as  such  while  a  member  of  a  Legislature.  The  effect  of  the 
majority  decision  in  this  case  may  invalidate  many  instruments  acknowl- 
edged before  notaries,  heretofore  recognized  as  valid. 

The  words  "office"  and  "public  office"  are  very  frequently  used  loosely 
without  any  intention  to  draw  the  line  as  to  whether  a  position  is  an 
"office,"  a  "place  of  trust  or  profit,"  or  a  "public  employment,"  and  it  is 
due  to  that  fact  that  many  opinions  have  spoken  of  the  position  of  notary 
public  as  an  office.    "Office"  means  simply  a  "duty,"  from  the  Latin  word 


officium;  and  as  this  position  is  called  ''notary  public,"  it  has  been  fre- 
quently, in  casual  writing  of  opinions,  referred  to  as  a  public  office. 

But  there  has  been  no  opinion  of  the  Supreme  Court  of  this  State  nor, 
it  is  believed,  of  any  other  State  which  has  ever  held  the  position  to  be  a 
"public  office"  when  the  line  was  being  drawn  between  "public  offices" 
and  "places  of  trust  or  profit"  or  "public  employment."  It  is  stated  posi- 
tively, after  much  research,  that  no  court  at  any  time,  in  any  State  or 
country  whatever,  has  held  the  position  to  be  a  public  office  when  there 
was  an  act  of  the  Legislature  decreeing  it  not  to  be  a  public  office.  In 
the  Opinion  of  the  Judges,  165  Mass.,  599,  the  Court  held  that  in  that 
State  the  position  of  notary  public  was  named  and  created  by  the  Con- 
stitution, and  therefore  the  Legislature  could  not  make  it  a  "place  of 
trust  or  profit"  or  a  public  employment  merely,  stating,  however,  that  if 
the  position  was  created  (as  it  is  in  this  State)  by  the  Legislature,  that 
body  would  be  competent  to  make  it  such  position  as  they  saAv  fit. 

In  this  State  there  have  been  two  or  three  decisions  which  loosely  refer 
to  the  position  of  notary  public  as  an  "office,"  but  that  was  at  the  time 
when  the  statute  referred  to  it  as  an  office.  It  took  its  rank  as  an  office 
from  such  statute,  and  if  the  General  Assembly  had  the  power  to  pass 
the  act  recognizing  it  as  an  office,  the  General  Assembly  of  1915  had  the 
power  to  make  it  a  "place  of  trust  or  profit."  Nothing  is  better  settled 
than  that  the  act  of  one  Legislature  can  be  repealed  or  amended  by  a  suc- 
ceeding one.  I^Teither  act  has  any  validity  except  as  the  organized  expres- 
sion of  the  public  will  of  the  time,  Avhich  is  subject  to  change  or  modifica- 
tion by  any  subsequent  legislature. 

In  our  own  State  this  Court  has  followed  (Mini  v.  Ellington,  134  ]^.  C, 
131)  the  decisions,  universal  elsewhere,  that  the  Legislature  has  entire 
power  over  offices  created,  not  by  the  Constitution,  but  by  the  Legislature 
itself  (Scoivn  v.  Scarnecki,  164  111.,  and  numerous  cases  there  cited),  and 
has  said  in  words  exactly  applicable  to  the  facts  of  this  case  (Brown  v. 
Turner,  70  IST.  C,  100)  :  "When  the  Legislature  created  and  called  it  an 
office  it  was  an  office,  not  because  the  peculiar  duties  of  the  place  consti- 
tuted it  such,  but  because  the  creative  will  of  the  lawmaking  power  im- 
pressed that  stamp  upon  it;  therefore,  when  that  stamp  was  effaced  by 
the  repealing  act  it  shrank  to  the  level  of  an  undefined  duty.  The  author- 
ity that  invested  these  duties  with  the  name  and  dignity  of  a  public  office 
afterwards  divested  them  of  that  name  and  dignity." 

We  have,  however,  had  two  instances  in  this  State  in  which  the  ques- 
tion was  sharply  presented  whether  the  position  of  notary  public  was  an 
office  or  not,  and  in  both  it  was  held  not  to  be,  and  in  those  cases  only  was 
the  question  squarely  presented. 

In  1867  it  became  an  important  matter  to  draw  the  line  between  what 
positions  in  this  State  w^ere  offices  and  what  were  not.  The  Attorney- 
General  of  the  United  States,  on  12  June,  1867,  published  his  "considered 
opinion"  (as  our  Court  styled  it),  in  which  he  defined  what  positions 
were  offices  and  what  public  employments  were  not  offices.     The  thir- 


teenth  paragraph  iu  liis  opinion,  after  reciting  what  were  ''offices,"  says, 
as  to  those  "not  offices" :  "13.  Persons  Avho  exercise  mere  agencies  or  em- 
ployments under  State  authority  are  not  disqualified,  such  as  commis- 
sioners to  lay  out  roads,  commissioners  of  public  works,  visitors  of  State 
institutions,  directors  of  State  banks  or  other  State  institutions,  notaries 
public,  commissioners  to  take  acknowledgment  of  deeds,  and  lawyers." 
That  opinion  of  the  Attorney-General  of  the  United  States  is  quoted  in 
full  by  our  Supreme  Court  and  adopted,  Worthy  v.  Barrett,  63  N.  C, 
at  p.  203. 

This  Court  subsequently  and  continuously  down  to  this  time  has  recog- 
nized its  correctness,  for  this  Court  without  question  has  been  licensing 
women  as  lawyers,  certainly  a  far  more  important  position,  and  the  stat- 
ute requires  that  all  lawyers  must  take  an  oath  of  office  and  an  oath  of 
allegiance  both  to  the  State  and  Federal  Governments. 

The  only  other  case  in  which  the  point  has  been  exactly  presented  was 
Lawrence  v.  Hodges,  92  N.  C,  681.  The  Constitution,  Art.  XIV,  sec.  7, 
provides:  "No  person  who  shall  hold  any  office  or  place  of  trust  or 
profit  under  the  United  States,  or  this  State,  or  any  other  State,  .  .  . 
shall  hold  or  exercise  any  other  office  or  place  of  trust  or  profit  under  the 
authority  of  this  State."  Revisal,  2349,  provides:  ''The  clerks  of  the 
Superior  Court  may  act  as  notaries  public  in  their  several  counties  by 
virtue  of  their  office  as  clerks,  and  may  certify  their  notarial  acts  under 
the  seals  of  their  respective  courts."  It  cannot  be  contested  that  clerks 
of  the  courts  are  public  officers  created  by  the  Constitution.  If,  there- 
fore, the  position  of  notary  public  was  an  "office"  also,  the  same  person 
could  not  hold  both  positions.  The  act  of  Congress  required  certain 
mortgages  on  vessels  to  be  acknowledged  before  a  notary  public,  and  in 
Laivrence  v.  Hodge^  the  question  was  presented  whether  the  clerks  were 
valid  notaries  public,  and  it  was  held  in  92  N.  C,  at  p.  681,  that  they 
were.  It  thus  conclusively  appears  that  in  both  the  cases  in  which  the 
point  was  presented  the  position  of  notary  public  was  held  not  to  be  an 
office. 

McCullers  v.  Comrs.,  158  N.  C,  80,  holding  that  the  Governor  and 
others  can  discharge  certain  functions  ex  officio,  in  no  wise  conflicts  with 
Laivrence  v.  Hodges.  If  it  did,  all  that  would  be  necessary  would  be  to 
provide  that  any  woman  who  held  the  position  of  school  trustee,  to  which 
she  is  eligible,  can  ex  officio  discharge  the  duties  of  a  notary  public.  The 
position  of  "lawyer"  has  been  often  styled  an  "office,"  but  women  were 
admitted  to  the  bar  in  this  State  because  it  was  found  that  to  hold  that 
position  an  office  would  disqualify  a  large  part  of  the  Legislature  and 
many  other  officeholders,  State  and  Federal.  While  the  statute  incident- 
ally refers  to  notaries  public  and  lawyers  as  officers,  there  has  been  no 
express  decision  that  a  notary  public  is  an  office,  till  now. 

But  it  has  been  argued  by  some  that  the  position  of  notary  public  was 
an  office  at  common  law.    If  it  had  been,  the  common  law  is  simply  the 


English  law,  the  largest  part  of  which  was  the  decisions  of  the  English 
judges  based  upon  their  customs  or  the  construction  of  their  statutes, 
and  of  course  subject  to  be  changed  at  will  by  the  Legislature  of  North 
Carolina  in  all  matters  that  concern  our  self-governing  people.  In  fact, 
however,  a  letter  from  Sir  John  Simon,  at  present  Attorney-General  of 
England,  written  in  January  of  this  year,  says :  "jSTo  act  of  Parliament 
has  ever  disqualified  women  from  holding  the  position  of  notary  public 
in  this  country,  and  it  is  very  certain  that  none  such  could  be  passed." 
Even  if  it  had  been  otherwise,  it  would  not  have  disqualified  the  General 
Assembly  of  ITorth  Carolina  from  defining  it  to  be  a  mere  place  of  trust 
or  profit,  and  authorizing  women  to  hold  it. 

In  U.  S.  V.  Bixby,  10  Bizzell,  520,  it  was  held  by  Gresham,  J.,  that  "at 
common  law  a  minor  is  eligible  to  the  position  of  notary  public."  In 
Virginia,  which  naturally  more  nearly  follows  the  English  law  than  any 
other  State  in  this  Union,  its  Attorney-General  says :  "In  this  State  any 
man  or  woman  over  18  years  of  age  can  be  a  notary  public." 

But  aside  from  any  statute  Avhich  (like  our  act  of  1915)  expressly 
makes  the  position  "a  place  of  trust  or  profit,"  or  our  previous  statute, 
which,  without  expressly  making  it  an  office,  merely  required  an  oath  of 
office  (as  is  also  required  of  la^vyers,  public  administrators,  and  others 
who  have  been  held  to  be  not  officers),  the  position  in  itself  inherently  is 
not  an  "office."  The  duties  of  a  notary  public  are  prescribed  (Rev., 
2350)  and  are  purely  those  of  certificate  and  analogous  to  those  of  a 
commissioner  to  take  affidavit,  and  have  in  them  no  element  of  an  office. 

The  decisions  have  all  held  that  to  be  a  "public  office"  as  distinguished 
from  a  "place  of  trust  or  profit"  or  a  "public  employment"  the  officer 
must  possess  and  exercise  some  of  the  sovereign  powers  of  the  State, 
either  executive,  legislative,  or  judicial.  S.  v.  Smith,  145  N.  C,  477, 
citing  Mechem  on  Pub.  Officers,  sec.  1.  A  notary  public  cannot  legislate. 
A  notary  cannot  execute  the  law,  and  has  no  judicial  functions.  The 
duties  of  the  position  are  simply  to  take  douTi  and  certify  evidence.  For 
the  purpose  of  certification,  the  notary  has  a  seal,  just  as  formerly  any 
grantor  in  a  deed  had,  to  authenticate  his  act  by  his  seal.  This  did  not 
make  every  grantor  a  public  officer.  It  is  true  that  in  certain  rare  cases 
a  notary  public  has  the  power  of  contempt.  So  by  statute  has  every 
referee  in  ISTorth  Carolina  (Rev.,  492),  but  a  referee  certainly  is  not 
therefore  an  officer. 

The  entire  experience  and  recognition  of  the  rest  of  the  world  is 
against  the  position  being  ex  vi  termini  a  public  office.  In  Massachu- 
setts and  in  Ohio  and  one  or  two  other  States  the  position  has  been  made 
an  office  by  the  Constitution  or  a  statute.  After  the  passage  of  this  act 
of  our  General  Assembly  an  official  inquiry  was  instituted  as  to  the 
status  of  notary  public  in  the  other  States.  The  replies  from  their  judi- 
cial departments  show  that  out  of  the  fifty-three  jurisdictions  in  the 
United  States  {i.  e..  forty-eight  States,  the  District  of  Columbia,  and  the 


territories  of  Alaska,  Porto  Rico,  Hawaii,  and  the  Philippines)  women 
are  competent  to  be  notaries  public  in  all  except  ten,  and  in  those  ten 
they  were  held  incompetent  either  because,  as  in  Massachusetts,  the  Con- 
stitution had  made  the  position  an  office  or  a  statute  had  made  it  an 
office,  or,  as  in  a  few  of  them,  ''it  had  not  been  the  custom  to  admit 
women  to  hold  the  place,  and  there  was  no  statute  as  yet  authorizing 
them  to  fill  the  position."  In  no  case  was  there  found,  or  reported,  a 
decision  holding  women  incompetent  to  fill  the  place  when  there  was  a 
statute  authorizing  them  to  do  so,  or  providing  that  the  position  was  not 
an  office.  Outside  of  these  ten  States  (of  our  fifty-three  jurisdictions) 
there  is  no  country  which  disqualifies  a  Avoman  to  hold  the  position  of 
notary  public.  There  are  semicivilized  and  barbarous  countries  in  which 
they  are  allowed  to  hold  no  position  whatever,  and  in  those  countries 
there  is  probably  no  such  position. 

There  have  been  many  cases  in  this  Court,  of  course,  holding  acts  of 
the  Legislature  unconstitutional.  But  no  one  has  ever  found  express 
authority  in  the  Constitution  to  do  so,  and  it  is  claimed  to  exist  by  con- 
struction and  inference  of  the  courts  in  their  own  favor.  This  Court  has, 
almost  in  every  instance,  therefore,  wisely  taken  the  pains  to  say  that  it 
will  not  exercise  this  assertion  of  supreme  power  in  setting  aside  the 
action  of  the  other  departments  of  the  Government  unless  such  action 
was  clearly  unconstitutional,  and  has  repeatedly  quoted  on  this  point 
Ogden  v.  Sanders  (TJ.  S.  Supreme  Court),  12  Wheaton,  at  p.  270,  in 
which  it  was  held  that  the  highest  Court  in  the  Union  would  not  even 
hold  a  State  act  unconstitutional  as  in  violation  of  the  Federal  Constitu- 
tion unless  it  were  so  "beyond  all  reasonable  doubt."  This  is  the  consid- 
erate language  of  that  high  Court :  "It  is  but  a  decent  respect  due  to  the 
wisdom,  integrity,  and  patriotism  of  the  legislative  body,  by  which  any 
law  is  passed,  to  presume  in  favor  of  its  validity  until  its  violation  of  the 
Constitution  is  proved  heyond  all  reasonable  doubt." 

Ought  not  this  Court  to  follow  what  we  have  so  often  quoted  and 
approved,  and  out  of  a  "decent  respect  to  the  wisdom,  the  integrity,  and 
the  patriotism  of  the  legislative  body"  hold  that  the  violation  of  the 
Constitution  by  that  body  in  this  case  "is  not  proved  beyond  all  reason- 
able doubt"  ? 

This  position  had  its  origin  in  the  Roman  civil  laAv.  Its  duties  were, 
and  still  are,  like  those  of  a  stenographer,  with  power  only  to  certify  the 
evidence  taken  down  or  acknowledgments  made  of  instruments.  The 
notary  public  has  no  legislative,  executive,  or  judicial  authority.  He 
cannot  even  probate  a  deed,  but  merely  certifies  its  acknowledgment 
{White  V.  Connelly,  105  jST.  C,  65),  though  it  is  held  that  even  a  deputy 
clerk,  who  can  probate  it,  is  not  an  officer. 

The  Attorney-General  of  the  State,  in  this  very  case,  appearing  in 
open  Court,  admitted  the  validity  of  this  statute.  The  Attorney-General 
of  the  United  States  has  said  in  an  official  opinion  that  "commissioners 


of  affidavits,  notaries  public,  and  lawyers"  are  not  public  officers,  and 
this  Court  in  an  unanimous  opinion  affirmed  that  ruling  and  have  acted 
upon  it  ever  since  as  to  the  other  two  positions.  Why  overrule  it  now 
as  to  notaries  public  alone?  The  Attorney-General  of  Great  Britain 
says  that  the  law  does  not  disqualify  women  from  being  notaries  public. 
Why  should  we  disqualify  them  ?  In  all  the  other  States  and  territories 
of  the  Union,  except  ten,  women  are  admitted  to  be  notaries  public.  In 
our  own  State  the  Revisal,  3349,  permits  the  clerk  of  the  court  to  be  a 
notary  public,  which  he  could  not  be  if  it  was  an  office,  and  this  Court 
held,  as  above  stated,  that  he  was  a  valid  notary  public  where  the  valid- 
ity of  a  mortgage  under  a  United  States  statute  required  the  instrument 
to  be  acknowledged  before  a  notary  public.  In  the  ten  States  not  per- 
mitting women  to  be  notaries  public  there  is  no  statute  permitting  them 
to  be. 

If  any  opinion  I  have  ever  written,  when  the  statute  as  to  notaries  was 
different,  could  be  fairly  construed  as  opposed  to  what  is  herein  said  by 
me,  under  the  present  statute,  it  would  not  be  an  estoppel  to  hold  cor- 
rectly in  this  case.    Besides,  I  have  no  pride  of  opinion  that  compels  me 
to  prefer  former  opinions,  if  erroneous,  to  doing  justice  now.     I  have     , 
never  deemed  myself  infallible,  but  hold  that  all  judges  should  be  glad  of    ' 
opportunity  to  correct  their  mistakes.     We  should  grow  Aviser  with  the 
years;  otherwise,  experience  is  of  no  value.     The  infallibility  of  judges  / 
is  not  an  American  doctrine,  nor  indeed  is  it  held  anywhere. 

Under  changing  conditions,  due  largely  to  the  introduction  of  ma- 
chinery, women  are  forced  to  seek  new  and  wider  employment.  The 
Legislature,  recognizing  this,  and  learning  that  in  some  quarters  there 
was  opposition  to  their  receiving  fees  in  the  purely  clerical  work  of  a 
notary  public,  owing  to  some  passing  references  to  the  position  as  an 
"office"  in  two  or  three  decisions,  passed  an  act  making  the  position 
merely  "a  place  of  trust  or  profit,"  and  not  an  office,  and  specifically 
authorizing  the  Governor  to  appoint  women.  This  was  purely  a  political 
question,  and  the  Legislature  was  acting  with  an  intelligent  understand- 
ing of  changed  economic  conditions  and  in  a  humane  desire  to  do  justice 
to  a  deserving  class,  and  with  full  recognition  of  their  obligation  to 
observe  the  Constitution.  The  Governor  was  "authorized,"  not  "re- 
quired," to  appoint  women.  He  is  one  of  the  foremost  lawyers  of  the 
State,  with  the  intelligence,  firmness,  and  patriotism  to  know  and  main- 
tain the  limitations  of  the  Constitution.  He  appointed  the  plaintiff  to 
this  position.  The  judge  of  the  lower  court,  sv/orn  also  to  obey  the  Con- 
stitution, and  a  learned  lawyer,  held  that  it  was  no  violation  of  the 
Constitution  for  the  Legislature  to  so  enact.  Our  Attorney-General,  who 
brought  this  action,  stated  on  the  argaiment,  after  fuller  investigation, 
and  also  in  Avriting,  his  opinion  that  the  action  of  the  Legislature  is  con- 
stitutional. 


Ought  this  Court,  by  three  votes  to  two,  hold  that  this  action  of  the 
executive  department  and  of  the  Legislature  and  by  the  other  judicial 
officers  who  have  passed  upon  this  matter  has  been  beyond  question  a 
violation  of  the  Constitution,  and  that,  too,  without  specifying  the  pro- 
vision of  the  Constitution  that  has  been  so  dangerously  and  alarmingly 
violated  when  the  Legislature  has  permitted  women  working  for  a  living 
to  earn  a  few  needed  fees  by  authorizing  them  when  taking  down  and 
certifying  evidence' merely  to  authenticate  their  certificates  by  adding 
the  impression  of  a  seal  ?  The  statute  provides  that  such  impression  of 
a  seal  does  not  make  the  position  an  office. 

It  has  been  urged,  however,  that  fees  are  paid  for  impressing  the  seal ! 
"Ay!  there's  the  rub."  Women  are  not  voters,  and  there  are  those  who 
think  that  fees  should  be  reserved  exclusively  for  voters,  in  recognition 
of  their  services.  But  these  fees  are  not  paid  by  the  State  or  county,  but 
by  individuals,  and  notaries  receive  no  salaries. 

It  was  held  in  Brown  v.  Turner,  70  N.  C,  100,  that  the  position  of 
Public  Printer,  worth  many  thousands  of  dollars,  which  the  previous 
statute  had  made  an  "office,"  was  reduced  to  the  grade  of  a  "place"  be- 
cause the  Legislature  said  so.  though  the  effect  Avas  that  a  Republican 
Court  thus  admitted  the  validity  of  the  act  of  a  Democratic  Legislature 
in  filling  the  "place"  with  a  Democrat  when  the  Republican  Governor, 
holding  it  to  be  an  "office,"  had  appointed  one  of  his  own  party. 

In  S.  V.  Smith,  145  X.  C,  476,  this  Court  held  that  a  public  adminis- 
trator who  has  a  term  of  eight  years,  gives  bond,  and  takes  an  oath  of 
office  (Rev.,  19)  is  a  mere  "place"  and  not  an  "office,"  Broivn,J.,  quoting 
from  Chief  Justice  Marshall,  saying  that  "Although  an  office  is  a  public 
employment,  it  does  not  follow  that  every  public  employment  is  an  office." 
*S'.  V.  Smith  was  cited  with  approval  by  Allen,  J.,  in  Boynton  v.  Heartt, 
158  N".  C,  490. 

The  Constitution  of  this  State  does  not  prohibit  the  Legislature  from 
admitting  women  to  any  office.  The  prohibition  is  just  the  opposite,  and 
merely  forbids  any  one  who  is  a  voter  from  being  disqualified  to  hold 
office.     *S'.  V.  Bateman,  162  X.  C,  591. 

Even  if  every  position  created  by  the  Legislature,  however  small,  could 
be  held  to  be  an  office,  notwithstanding  legislative  enactment  to  the  con- 
trary, the  Constitution  of  this  State  has  never  made  the  requirements 
for  voting  and  for  holding  office  the  same.  Prior  to  1868  the  Constitu- 
tion imposed  the  o^^aiership  of  property  as  a  prerequisite  for  certain 
offices.  The  Constitution  of  1868,  discarding  all  that,  imposed  the  sole 
limitation  upon  the  Legislature  that  no  voter  should  be  disqualified  to 
hold  office,  with  the  exceptions  therein  named;  which  exceptions  do  not 
name  women. 

Singularly  enough,  the  majority  opinion  in  this  case  quotes  from  a 
judge  who  was  a  woman  (Portia),  when  she  held  that  Shylock's  demand 
of  a  "pound  of  flesh"  must  be  granted,  because  else  the  ruling  would  be 


"recorded  as  a  precedent,"  etc.     It  will  be  recalled,  however,  that  she      / 
almost  immediately  reversed  that  ruling,  to  which  she  had  been  over-     / 
persuaded,  and  rendered  a  just  judgment  on  the  merits.     That  case  has     I 
been  famous  for  ages  as  showing  the  competency  of  a  woman  for  judicial 
position,  in  that  she  administered  justice  and  w^as  superior  to  the  super- 
stition that  erroneous  precedents  are  more  sacred  than  justice.    A  woman 
herself.  Judge  Portia  certainly  did  not  intend  that  her  decision  should  be     I 
quoted  as  authority  that  a  woman  could  not  be  a  notary. \ 

The  General  Assembly  has  all  the  powers  of  legislation  that  the  people 
themselves  have,  unless  restrained  by  some  provision  of  the  Constitution. 
Cannot  the  Legislature  of  a  sovereign  State  provide  that  the  function  of 
authenticating  a  certificate  or  acknowledgment  or  protest  by  making  the 
impression  of  a  seal  on  paper  shall  be  a  "place"  and  not  an  "office"? 
And  that  women  may  receive  the  fees  for  such  work,  if  appointed  ? 

The  feudal  and  medieval  theory  as  to  women — "half  angel  and  half 
idiot"^ — meant  in  practice  that  those  above  the  necessity  of  work  might 
be  on  public  occasions  spoken  of  as  if  "half  angels,"  but  that  all  classes 
of  them  and  all  the  time,  were  treated  as  at  least  "half  idiots"  and  with- 
out legal  rights.  If  married,  they  were  submerged  in  the  existence,  and 
under  the  power,  of  their  husbands,  who  had  the  right  even  to  chastise 
them  at  Avill.  This  last  right  persisted  in  l^orth  Carolina  down  to  1874, 
when  Settle,  -/.,  in  S.  v.  Oliver,  70  IST.  C,  61,  said  the  courts  had  "ad- 
vanced from  that  barbarism" — thus  overruling  the  then  recent  cases  of 
S.  V.  Black,  60  N.  C,  262 ;  S.  v.  Rhodes,  61  ^.  C,  453,  and  others.  In 
all  progressive  communities  feudal  ideas  have  passed,  or  are  passing,  and 
women  are  held  to  be  human  beings,  entitled  to  equal  rights  with  men. 

There  is  but  one  question  in  this  case,  "Can  this  defendant  discharge 
the  duties  of  a  notary  when  so  authorized  by  an  act  of  the  Legislature 
and  commissioned  by  the  Governor?  Or  is  she  barred  because  she  is  a 
woman  ?" 

Under  the  Constitution  of  the  United  States  no  one  is  debarred  from 
holding  any  office,  from  President  down,  because  of  sex.  What  pro- 
vision of  the  State  Constitution  will  be  shattered,  and  what  detriment 
will  the  public  welfare  receive,  if  by  legislative  and  executive  authority 
a  woman  shall  authenticate  a  certificate,  made  by  herself,  by  impressing 
the  seal  upon  a  piece  of  paper  ? 

If  the  plaintiff  were  a  man  he  would  not  be  debarred  from  holding  this 
appointment  unless  he  were  an  idiot,  a  lunatic,  or  a  convict.  The  Legis- 
lature, voicing  the  sentiment  of  the  people  of  the  State,  have  enacted 
that  it  is  neither  a  crime  nor  a  defect  in  this  appointee  to  discharge  the 
clerical  duties  of  a  notary  public  because  she  is  a  woman.  Shall  the 
Court  hold  that  it  is  ? 

Brown,  J.,  also  dissents. 


